Decision Report Discharge of Methyl Bromide to Air Envirofume Limited Resource Consent Application to Bay of Plenty Regional Council 29 March 2016 Table of Contents 1  Appointment  3  2  Description of the Proposal and Consent Required  3  2.1  Description  3  2.2  Consents Required  5  3  Notification, Submissions and Written Approvals  7  4  Process Issues  7  4.1  Consultation  7  4.2  Officer’s recommendation  7  5  Hearing and Appearances  8  6  Potential Adverse Effects  8  7  8  9  6.1  Human health effects  8  6.2  Dispersion modelling  10  6.3  Practical implementation of proffered conditions  13  6.4  Recapture  15  6.5  Cultural effects  16  6.6  Conclusion on effects  16  Statutory Instruments  17  7.1  Policy statements and plans  17  7.2  Section 105 of the RMA  18  Part 2 matters  18  8.1  Positive effects  18  8.2  Part 2  18  Determination  19  Appendix 1 Appearances Envirofume Limited  Application 68152  1 Appointment [001] The Bay of Plenty Regional Council (BOPRC), acting under section 34A of the Resource Management Act 1991 (RMA), appointed independent hearing commissioner Rob van Voorthuysen 1 to conduct a hearing into the Envirofume Limited2 (Envirofume or Applicant) application number 68152 for resource consent to discharge methyl bromide to air in relation to the pre-shipment fumigation of export logs at the Port of Tauranga Mount Maunganui Wharves site (POT). 2 Description of the Proposal and Consent Required 2.1 Description [002] The nature of Envirofume’s proposal was described in the Applicant’s various AEEs,3 section 92 information request response4 and hearing evidence, and in the Section 42A Report5 (officer’s report). By way of high level overview, I note that the proposal comprises the following key elements:6 Envirofume has applied for a permit to discharge Methyl Bromide (MB) and Phosphine to air in relation to the pre-shipment fumigation of export logs. The fumigation is a necessary quarantine requirement for some of the countries (particularly India and China) that import New Zealand logs. The discharge will occur both within the POT site and the Coastal Marine Area (CMA). UML have not previously and are not currently undertaking fumigation at the POT. Methyl Bromide (MB) and Phosphine are both listed in Schedule 3 of the Bay of Plenty Regional Air Plan (RAP) as being "hazardous air pollutants" due to the fact they are either known or suspected to cause:  Acute human health effects; cancer or teratogenic effects; or serious or irreversible effects-reproductive dysfunction's, neurological disorders, heritable genetic mutations, or other chronic health effects; or  Significant adverse effects on the environment due to their toxicity, persistence in the environment, tendency to bioaccumulate, or any combination of these. The Environmental Risk Management Authority's (now known as the Environmental Protection Authority (EPA)) decision on the Application for the Reassessment of MB confirms that exposure to MB in both low and high concentrations will result in adverse effects on human health ranging from destruction of the nasal tissue (low concentrations) to reduced fertility, developmental effects and damage to the central nervous system (high concentrations). MB is a colourless, odourless gas which makes its detection, monitoring and management difficult. MB is also an ozone depleting substance. The EPA has                                                              1 Commissioner van Voorthuysen is an experienced independent commissioner, having sat on over 240 hearings throughout New Zealand since 1998. He has qualifications in natural resources engineering and public policy and is a full member of the New Zealand Planning Institute (NZPI). 2 The applicant was initially Urlich Milne Lawyers. 3 Information Lodged in Support of RC68152, Prepared for UML ,Prepared by Beca Pty Ltd (Beca), 27 October 2015 [October 2015 AEE]; Supplementary Report - Discharges to Air from Methyl Bromide Fumigation, Prepared for UML, Prepared by Beca Pty Ltd (Beca), 27 October 2015 [October 2015 Supplementary AEE]; Assessment of Effects - Discharges to Air from Methyl Bromide Fumigation, Prepared for UML, Prepared by Beca Pty Ltd (Beca), 14 January 2015 [January 2015 AEE]. 4 Discharge to Air from Methyl Bromide Fumigation - Response to Request for Further Information (S92) RMA, Prepared by Beca Ltd (Beca), 30 March 2015 [March 2015 s92 Response]. 5 Bay of Plenty Regional Council, Notified Resource Consent Application Number 68152, Envirofume Limited – Discharge to Air from Methyl Bromide Fumigation, Reuben Hanse, 10 February 2016 [officer’s report]. 6 The description was sourced largely from the BOPRC Notification Decision, the March 2015 s92 Request, and the October 2015 Supplementary AEE. 3    Envirofume Limited  Application 68152  stipulated that all use of MB must employ recapture technologies by 2020 to ensure that all discharges to air cease.7 Genera Limited (Genera) is the only other operator currently undertaking fumigation using MB at the POT. They hold air discharge permit 62719 issued by BOPRC in June 2005 and expiring in April 2020, which coincides with the EPA's requirement to cease all discharges of MB to air. The Genera permit was reviewed in May 2014. Envirofume have proposed that the POT will prepare a fumigation ventilation protocol that will manage cumulative effects from the Genera and Envirofume operations. Envirofume have offered a ‘condition precedent’ which effectively prohibits Envirofume from discharging MB to air until the POT protocol is confirmed as being appropriate by the BOPRC. Envirofume’s methodology for applying fumigant will be similar to Genera’s with the exception that venting will involve both forced ventilation and passive ventilation. Fumigation will occur in either the holds of the bulk carrier vessels (bottom stow) or on-shore under tarpaulins with the logs then loaded onto the bulk carrier (top stow). Bottom stowed logs can be treated with either MB or Phosphine. Whether MB or Phosphine are used for bottom stow logs is determined by the individual importing country based on its specific quarantine treatment requirements. At present only MB is used for treatment of top stow logs. Bottom stowed logs treated with Phosphine are ventilated while the vessel is in-transit to the county where the logs are destined for. This occurs further than twelve Nautical Miles from the shoreline and offshore islands) and so consent is not required for that operation. At the completion of a fumigation procedure all MB not entrained within the wood fibres of the logs is contained within the vessel hold (bottom stow) or under the tarpaulins (top stow) which are sealed to the ground surface with "water snakes". For a log row fumigation Envirofume has described its forced ventilation technique as comprising one end of the sealed log row stack being connected to a portable extraction fan unit and the other end to an air intake grill. The extraction fan will have a flue stack approximately 6m high with MB discharged to air from the flue stack at a flow rate of approximately 3m3/s. Each log row will be mechanically vented for approximately 15-20 minutes after which time they will be passively ventilated (the tarpaulins are removed). Envirofume proposes that forced ventilation procedures will be used predominantly during low wind speed conditions to improve the dispersion of MB. For ship hold ventilation an axial blower will be placed on top of one manway to a hold and at the other manway to the hold a 4m high plastic flue will be affixed. Fresh air will forced into the hold by the axial blower and the air containing the MB within the hold will be displaced and discharged out of the plastic flue to the atmosphere. The concentration of the MB discharged from the flue stack will decrease over the ventilation period, as more fresh air enters the hold and dilutes the hold air containing the residual MB. The axial blower has been assumed to have an air flow rate of approximately 2.4m3/s. Envirofume, along with the ‘person in charge’ of the site have a shared responsibility under the Hazardous Substances and New Organisms Act 1996 (HSNO) to monitor, record and report on it use of MB concentrations. The EPA requires Envirofume to, amongst other requirements:                                                              7 The Ozone Layer Protection Regulation Act 1996 controls the importation, exportation, manufacture and sale of ozone depleting substances. The EPA decided in November 2010 to allow the continued use of the fumigant methyl bromide following an extensive reassessment of the substance use in NZ. The reassessment under the Section 63 of HSNO act set a 10 year target for the use of recapture technology to be mandatory. The Montreal Protocol recognises that methyl bromide is a very important tool for global trade and for this reason pre-treatment /pre shipment use of methyl bromide is exempt from the Montreal Protocol. 4    Envirofume Limited     Application 68152  Set and enforce minimum Buffer Zones; Monitor air quality during ventilation; Collect and collate records of air quality monitoring and submit reports to the EPA. Envirofume proposes to conduct monitoring at the POT in accordance with EPA guidelines. Envirofume have prepared ventilation rate "Look Up Tables" (Appendix 5 of the January 2015 AEE) for each area of the POT where log row fumigations and ventilations are likely to occur in order to assist fumigators to comply with Tolerable Exposure Limit (TEL) requirements imposed by the EPA. The tables are derived from a meteorological dataset and the Applicant’s atmospheric dispersion model. The tables specify the maximum number of ventilations which may occur during a single hour based on meteorological and MB dosage conditions. Envirofume considers that the tables will ensure that MB concentrations will not exceed the 1-hour average TEL outside the POT. However, the TEL will be exceeded in the CMA adjacent to ships being ventilated. Envirofume advise that they will take all practicable steps to monitor and avoid potential exposures in the CMA. Specific management procedures will be detailed in Envirofume Safe Operating Procedures (SOPs). BOPRC has made an order under section 42(2)b of the RMA that the Look Up tables are to be treated as confidential for the duration of the air discharge permit (if granted).8 In October 2015 Envirofume undertook further modelling which indicated that workers at nearby industrial properties were not predicted to be exposed to MB levels which exceed the annual average TEL of 0.005mg/m3, assuming that 30% of the applied MB is discharged to the atmosphere during ventilation. If that assumption is altered to 42% (based on research undertaken by Plant and Food Research and Scion Research which suggested that higher figures were appropriate)9 there will be some exceedences of the 1-hour average TEL on adjacent industrial zoned properties. Envirofume initially sought a consent duration of 20 years, but this has been amended to a duration expiring April 2020 to comply with the EPA’s requirement to have total recapture in place by that time. [003] The various Port of Tauranga (POT) log fumigation zones referred to in this decision report are shown in Figure 1 below. That figure also shows the POT site boundary (the thick yellow line). 2.2 Consents Required [004] Resource Consent is required from the BOPRC under sections 15(1)(c) and 15(B)(1)(a) 10 of the Resource Management Act 1991 (RMA) and Rule 17 of the Regional Air Plan to undertake a discretionary activity being to discharge a contaminant into air. I am satisfied that all of the activities proposed, including proposed monitoring and mitigation, are provided for by the Envirofume resource consent application.                                                              8 I note that the Order issued by BOPRC states “This restriction will cease to have effect at the conclusion of the consent proceeding and thereafter the information will be subject to the provisions of the Local Government Official Information and Meetings Act 1987” 9 October 2015 Supplementary AEE, section 3.1.2(1), page 9. 10 I note that Mr Frentz considered that consent was required under section 15(2A) and not section 15B(1)(a), but I was not persuaded by his reasoning. 5    Envirofume Limited Cruise Shi . Port Be?h Mar"; L. - Figure 1: Various log fumigation zones Application 68152 l. r? ?uInghams eed I I I (Mi-n. In," I Quit I'g'ma0213 Envirofume Limited  Application 68152  [005] I understand that although Envirofume is not proposing to store or transport methyl bromide (it will be delivered to the POT in cylinders by licensed chemical handlers); the use of methyl bromide at the POT requires land use consent from Tauranga City Council. 11 As at March 2015 that application was “in progress” and I was not provided with any further information regarding the status of that application. However, that does not impede my consideration of the discharge to air application. 3 Notification, Submissions and Written Approvals [006] The application was publicly notified and eight submissions were received.12 The issues raised in the submissions were summarised in the officer’s report.13 I adopt that summary, but do not repeat it here for the sake of brevity. I also note that I read each submission in full. [007] The BOPRC officers consider that written approvals were obtained from Ngati Ranginui, Ngati Pukenga and Ngai Te Rangi on the basis that those iwi provided letters to the Applicant stating that they “supported the proposal”. [008] Interestingly, the POT did not provide their written approval and did not submit in support of the application. Mr Frentz, a planner appearing for the Applicant, in answer to my questions, advised that the POT had been asked to submit in support of the application but had declined to do so as they wished to remain neutral. 4 Process Issues 4.1 Consultation [009] Under section 36A of the RMA there was no obligation on the Applicant to undertake consultation. Nevertheless, the evidence of Mr Hilton helpfully outlined the pre-application consultation undertaken with officials from the POT, the BOPRC Harbourmaster and representatives of several iwi and hapu.14 4.2 Officer’s recommendation [010] The reporting officer recommended that the application be declined, as it was his view “…that the Envirofume proposal, in its current form, could result in significant adverse effects on human health that cannot be mitigated” and because “… the Envirofume application is inconsistent with the relevant key provisions of the RAP [Regional Air Plan]”.15 [011] At the conclusion of the hearing the officer’s recommendation was still to decline the application. The officers’ Reply memorandum stated: “In terms of the RMA’s purpose and principles and decision making process on resource consent applications, it is the Council’s staff view that the applicant has not demonstrated that the effects of their proposal can be appropriately avoided, remedied or mitigated. The Council staff also note that there is a high potential impact on human health from exposure to an unsafe level of MB. On this basis, Council staff consider that the application should be declined as per the recommendation provided in the s 42 RMA report”16                                                              11 March 2015 s92 Response, Section 7, unnumbered page. Six submissions were received within the statutory timeframe and two ‘late submissions’ were accepted by BOPRC staff acting under delegated authority. 13 Officer’s report, section 7.1, page 11. 14 Statement of Evidence of Garry Hilton (CEO Envirofume), paragraphs 36 to 44. 15 Officer’s report, section 10.6 and 10.4. 16 Memorandum: Reporting Officer’s Reply, Reuben Hansen: Bay of Plenty Regional Council, Contract Consents Officer, 9 March 2016, paragraph 18. 12 7    Envirofume Limited  Application 68152  5 Hearing and Appearances [012] The hearing was held in the BOPRC offices in Tauranga on 8 and 9 March 2016. I did not undertake a site visit, due to the comprehensive nature of the documentation available to me and the fact that much of the evidence related to air quality dispersion modelling which is of course unable to be viewed on the ground. [013] A list of the parties who appeared at the hearing is provided in Appendix 1 of this decision report. Consistent with section 103B of the RMA I pre-read expert evidence that had been circulated before the hearing commenced. I have not attempted to summarise the written and verbal submissions, statements and evidence received during the course of the hearing as that would result in an unnecessarily lengthy decision. Copies of that written material, including material tabled during the hearing, are held by the BOPRC. I took my own notes of the verbal statements and evidence presented and any answers to my questions. I have however referred to, summarised or quoted from relevant elements of some of the submissions, statements and evidence in the balance of this decision report. [014] The Applicant provided a comprehensive written Reply on Monday 21 March 2016. I closed the hearing on Tuesday 22 March 2016. 6 Potential Adverse Effects [015] The potential adverse effects of the proposed activity were identified in the Applicant’s documentation and evidence, the submissions and the officer’s report. The definition of “effect” in the RMA is: In this Act, unless the context otherwise requires, the term effect includes— (a) any positive or adverse effect; and (b) any temporary or permanent effect; and (c) any past, present, or future effect; and (d) any cumulative effect which arises over time or in combination with other effects— regardless of the scale, intensity, duration, or frequency of the effect, and also includes— (e) any potential effect of high probability; and (f) any potential effect of low probability which has a high potential impact. [016] In the context of this application, I consider that clauses (b) (potential permanent adverse human health effects), (d) (cumulative effects arising from the concurrent undertaking of the Applicant’s operations with those of the incumbent fumigator Genera) and (f) (exceedence of the HSNO tolerable exposure limits would have a high potential impact) are particularly relevant, as I discuss further below. 6.1 Human health effects [017] Methyl bromide is odourless, colourless and heavier than air. It is classified under HSNO as 6.1B: “Substances that are acutely toxic – Fatal”. [018] As outlined in the officer’s report, methyl bromide is also listed within Schedule 3 of the Operative Bay of Plenty Regional Air Plan (RAP) as being a “hazardous air pollutant” due to the fact it is either known or suspected to cause:  Acute human health effects; cancer or teratogenic effects; or serious or irreversible effects‐reproductive dysfunction’s, neurological disorders, heritable genetic mutations, or other chronic health effects; and  Significant adverse effects on the environment due its toxicity, persistence in the environment, tendency to bioaccumulate, or any combination of these. 8    Envirofume Limited  Application 68152  [019] Accordingly, the EPA has set tolerable exposure limits (TELs) for methyl bromide designed to protect the general public from these adverse effects. In addition, the Ministry of Business, Innovation and Employment has set a workplace exposure standard (WES) for sites using methyl bromide in order to ensure the health and safety of those working in or visiting the workplace. [020] The TELs apply at the edge of a buffer zone from which the general public must be excluded. In this case the reporting officers and the Applicant agreed with my conclusion that the buffer zone is the POT security fence that borders the landward or eastern side of the port site.17 The Applicant’s dispersion modelling shows that the TELs cannot be met at the edge of the wharves and so a buffer zone (or public exclusion zone) must also necessarily extend over the CMA adjacent to berths 10 and 11 (see Figure 1 above). Importantly, the relevant EPA Technical Guide 18 categorically states that “The TELs are not to be exceeded anywhere outside the buffer zone …”. This reinforces my understanding that the TELs must not be exceeded at the POT security fence. [021] The WES applies to not just those workers who are directly involved in the fumigation activity, but include all people employed to work at the POT site, for example office workers and cargo handlers.19 Consequently the WES applies within the POT site whereas the TELs apply outside that site. This means the TELs apply to workplace environments that are located adjacent to the POT site, but are not part of that site. I agree with the evidence of the Oil Companies on that matter.20 I am not persuaded that these adjoining industrial sites should be treated as being of ‘low sensitivity’ as was suggested by Mr Noonan.21 [022] The respective TEL and WES values are: Averaging period Annual 24 hour 1 hour Workplace exposure standard (WES) [023] TEL Concentration Limit (ppm) (mg/m3) 0.0013 0.005 0.33 1.3 1.0 3.9 (ppm) 5 (mg/m3) 19 The WES is calculated on the basis of an ‘assumed’ work pattern of an 8 hour working day and a 40 hour work week.22 If a working day is longer than 8 hours then the WES should be corrected to account for the longer exposure time. 23 In that regard I agree with the evidence presented by the Oil Companies.24 For a 12-hour                                                              17 Fumigation Procedures for the Port of Tauranga, Version 2, March 2015, section 2.3, page 5. Methyl bromide fumigations, Post-reassessment guidance for fumigators, Technical Guide, April 2011, page 12. 19 Environmental Protection Authority, Methyl bromide fumigations, Post-reassessment guidance for fumigators, April 2011, section 2.0, page 17. 20 Statement of Evidence of Andrew Curtis on behalf of the Fuel Companies (Z Energy and Mobil Oil NZ), paragraphs 8.4 and 8.5. 21 Statement of Evidence of Mathew Noonan on behalf of Envirofume, 23 February 2016, paragraph 5.4. 22 Workplace Exposure Standards and Biological Exposure Indices, Effective from February 2013, 7th Edition, Ministry of Business, Innovation and Employment, section 2, page 12. 23 Ibid, section 2, pages 12 and 13. 24 Statement of Evidence of Andrew Curtis on behalf of the Fuel Companies (Z Energy and Mobil Oil NZ), paragraphs 8.2 and 8.3. 18 9    Envirofume Limited  Application 68152  shift the WES should be corrected downwards to 2.5 ppm (9.75 mg/m3) from 5 ppm (19 mg/m3). [024] However, whether or not the WES is exceeded within the POT site depends in large part on the way workers within that site are managed. This is already controlled by the Fumigation Procedures for the Port of Tauranga which, in relation to log fumigations undertaken onshore, establish a Risk Area within which protective equipment must be worn and a Monitored Safety Zone within which the fumigator must regularly monitor fumigant levels to ensure that the levels are not above the WES and present no risk to port users who may enter or work in the zone.25 [025] The Applicant addressed the WES in their Reply, stating: “The WES is a control imposed by the EPA and enforced by WorkSafe. It is noteworthy that in the HSNO controls there is no reference to the actual WES exposure limit but rather to the ‘Workplace Exposure Standards and Biological Exposure Indices’ which includes information on different calculations for different working shifts. Suffice to say though that how the WES is derived and what it is based on is a matter solely for the EPA”26 [026] I accept those submissions and consequently I have focused on the TELs as neither the POT nor Envirofume have control over the activities of the general public or workers located outside the POT site. 6.2 Dispersion modelling [027] The Applicant undertook atmospheric dispersion modelling of their proposed methyl bromide discharges using the computer model AUSPLUME. The modelling was undertaken by, and described in the evidence of, Mathew Noonan, an air quality consultant with Beca Ltd who was engaged by the Applicant. Mr Noonan also developed ‘look-up’ tables designed to limit the number of log row ventilations which can occur in a single hour, based on dosage, wind conditions and location within the POT site. The use of the ‘look-up’ tables is intended to avoid exceedances of the 1-hour and 24-hour TELs outside the POT site boundary.27 [028] The results of the dispersion modelling were presented in the various AEE documents. In particular, predicted compliance with the annual TEL (based on the total tonnage of methyl bromide usage at POT for the year 2013 assuming 30% of the methyl bromide is discharged to air during ventilation) and the 1-hour TEL (assuming 42% of the methyl bromide is discharged to air during the initial phase of the ventilation period, namely in the first 1½ to 2 hours) is presented in the Supplementary October 2015 AEE. [029] The selection of an appropriate methyl bromide discharge rate is important as it is a key factor affecting the dispersion modelling results. The Applicant considers that a 30% discharge rate is appropriate for the reasons stated in their Reply: “The [Port] Nelson Study remains the best and indeed only verified information available to date. While that Study discussed other figures (being 31% and 37% respectively), the Study ultimately concluded that a figure of 30% was appropriate.”28                                                              25 Fumigation Procedures for the Port of Tauranga, Version 2, March 2015, section 5.3 and Appendix 2. Closing Legal Submissions for Envirofume Limited, 21 March 2016, paragraph 26. Statement of Evidence of Mathew Noonan on behalf of Envirofume, 23 February 2016, paragraph 2.5. 28 Closing Legal Submissions for Envirofume Limited, 21 March 2016, paragraph 34. 26 27 10    Envirofume Limited  [030] Application 68152  However I am not persuaded by those submissions. Given that the assessment of this application involves consideration of potentially fatal adverse effects on human health, I prefer the evidence supporting the use of a more conservative 42% methyl bromide discharge rate. [031] The context for this particular matter of contention is contained in the Applicant’s Supplementary October 2015 AEE which states: “As far as we are aware the only mass balance study of methyl bromide dosages and discharges is the 2007 Port Nelson study referred to in the AEE. The results of the study indicate that 31% -37% of the total methyl bromide applied to the log row was discharged during the first 1.5-2 hours of forced ventilation of the log row. This is consistent with the assumed discharge rate of 30% used in the dispersion modelling assessment. Plant & Food Research has also undertaken direct measurement of methyl bromide concentrations during the fumigation of log rows at South Port and the Port of Tauranga. Concentrations at the start and end of a 16 hour fumigation period were measured using a gas chromatograph. Plant & Food Research estimated the concentrations at the end of the fumigation period to be approximately 42% of the initial dosage.”29 [032] However, the officer’s report advised: “In addition, Beca has confirmed within supplementary information30 supplied to the BOPRC that the 30% loss assumption was derived by rounding down from 37% and that 42% may be a more appropriate assumption.”31 [033] At the end of the hearing the reporting officer concluded: “Council staff note that the mass balancing equation conducted in Nelson demonstrated “loss” values that ranged between 31% and 37%. Consequently, it is Council’s staff view that 30% may be an unrealistic value to adopt and apply for modelling purposes. This issue is addressed in the Reporting Officer’s s 42A RMA Report where Council’s Environmental Scientist has noted that in some circumstances the loss rate may be as high as 50%. Council’s staff view is therefore that the 42% value assumed and provided for in a supplementary report (October 2015) provided by the applicant is likely to be a more suitable value to use for this assessment.”32 [034] I accept the evidence of the reporting officer on this matter. I also accept the evidence of Mr Curtis, an air quality specialist and toxicologist appearing for the Oil Companies, who stated in regard to this matter: “Therefore, I think it would have been more appropriate to use the highest credible value as the [methyl bromide] emission rate for assessment and modelling purposes.”33 [035] The AUSPLUME dispersion modelling undertaken by the Applicant shows that:  At a 30% methyl bromide discharge rate the annual TEL (0.005 mg/m3) contour only just falls within the POT site boundary;34                                                              29 Supplementary October 2015 AEE, section 3.1.2.1, page 9. Supplementary Report – Discharges to Air from Methyl Bromide Fumigation dated 27 October 2015 31 Officer’s report, section 9.1.3, page 15. 32 Memorandum: Reporting Officer’s Reply, Reuben Hansen; Bay of Plenty Regional Council, Contract Consents Officer, 9 March 2016, paragraph 6. 33 Statement of Evidence of Andrew Curtis on behalf of the Fuel Companies (Z Energy and Mobil Oil NZ), paragraph 6.4. 30 11    Envirofume Limited   Application 68152  At a 42% methyl bromide discharge rate the 1-hour TEL (3.9 mg/m3) contour, as modelled by the 99.9 percentile 1-hour average methyl bromide concentrations, falls outside the POT site boundary, both on land to the east of the site and in the coastal marine area to the west of the site.35 [036] The Supplementary October 2015 AEE notes 36 that “Predicted downwind concentrations conservatively assume worst case discharge conditions are occurring during worst case dispersion conditions”. As we are dealing here with potentially fatal effects on human health I consider it appropriate that worse-case conditions are modelled. Mr Frentz and Mr Noonan both confirmed that was the appropriate approach in response to my questions. I discuss this matter further in [039] below. [037] The Applicant’s dispersion modelling shows that when an appropriately conservative methyl bromide discharge rate (42% and not 30%) is used for the fumigation and ventilation of one group of 6 log rows,37 the 1-hour TEL is not met with the POT site boundary. In addition, it is highly likely that if a 42% methyl bromide discharge rate was used for the modelling of the Annual TEL then it too would not be met within the POT boundary.38 [038] Consequently, the Applicant’s own dispersion modelling evidence shows the TELs are not met within the POT site boundary (the relevant landward buffer zone) and so potential adverse effects on human health are not avoided. Should any such effects arise they are unable to remedied or mitigated. Mr Frentz agreed with that in response to my questions. [039] I am also concerned that the potential exceedence of the TELs may be worse than predicted by the dispersion modelling because:  I do not consider that the worst case scenario has actually been modelled. According to Mr Noonan, the ‘look up tables’ assume that log ventilations can occur 100m apart. On that basis numerous ventilation activities could conceivably occur simultaneously across the POT fumigation zones, including those being undertaken concurrently by both Envirofume and Genera. In answer to my questions, Mr Noonan eventually conceded that he had not modelled the effects of the incumbent operator (Genera) and Envirofume simultaneously ventilating on-shore logs stacks at the maximum rate that each operator’s respective resource consent would permit. Even that scenario might not be worst-case, as there might be also fumigation and ventilation of on-shore containers and cargo vessel holds occurring at the same time.39 Consequently potential cumulative effects to not appear to have been adequately modelled;  Mr Noonan confirmed that if the modelled emission source was moved outwards to the edge of a fumigation zone then the modelled methyl bromide concentration contours would move outwards by the same distance. So, considering Figure A540 for example, if the modelling assumed that the emission source was at the extreme southern end of Zone 2B (as opposed to the upper middle part of that zone) it is not clear to me that the 1-hour TEL (the 3.9 mg/m3 contour) would be met at the southern POT boundary;                                                                                                                                                                                           34 Supplementary October 2015 AEE, Figure 1, page 8. Ibid, Figures 2 to 8, pages 10 to 13. 36 Ibid, section 3.1.2.2, page 10. 37 From the evidence I understand that is what was modelled. See the Statement of Evidence of Mathew Noonan on behalf of Envirofume, 23 February 2016, paragraphs 4.21 and 5.4. 38 In answer to my questions Mr Noonan confirmed that compliance with the Annual TEL had only been modelled using a 30% methyl bromide discharge rate. It had not been modelled using a 42% discharge rate. 39 The existing Genera consent 62719 does not appear to preclude that from occurring. 40 January 2015 AEE, Appendix 3, page 49. 35 12    Envirofume Limited  Application 68152   I understand AUSPLUME is unable to model low wind speeds, namely those less than 0.5 m/s, 41 and the Envirofume application does not preclude night-time operations when such low wind speeds are more likely; and  Mr Noonan advised that the ‘look up’ tables have not been independently peer reviewed. [040] Based on the evidence available to me, I am not persuaded by the Applicant’s dispersion modelling that the mandatory TELs for methyl bromide will be met at the POT site’s landward boundary. I find that this weighs in favour of declining rather than granting the application. [041] Another concern I have is that it is not clear that to me that recreational and other commercial users of the CMA adjoining the wharf areas where the logging ships will be berthed can be effectively excluded from the necessary buffer area within which the TELs will be exceeded. It was undisputed that the 1-hour TEL contour (the modelled 3.9 mg/m3 methyl bromide concentration contour) extends into the CMA and this was clearly demonstrated by the Applicant’s dispersion modelling results. Envirofume proposes to rely on the actions of the BOPRC Harbourmaster to exclude people from this area, however the Harbourmaster is not obliged to act on Envirofume’s behalf and I was not presented with any compelling evidence that would guarantee that the Harbourmaster would be willing and able to fulfil that role for the duration of the consent. I find that this also weighs in favour of declining rather than granting the application. 6.3 Practical implementation of proffered conditions [042] The Envirofume application was not based solely on the dispersion modelling results discussed above. As explained by the Envirofume witnesses, particularly Mr Hilton, it was proposed that ‘real time monitoring’ of the methyl bromide emissions would enable potential exceedences of the TELs to be ‘identified’ and the discharges ceased so as to avoid any such exceedence actually occurring. [043] I understand how that might in theory be achievable for the 1-hour and perhaps even the 24-hour TELs, but I do not understand (and the Applicant’s evidence did not explain) how that could be achieved for the annual TEL. [044] I have reservations about the practicality of this ‘real time monitoring’ approach. In that regard, in answer to my questions Ms Atkins agreed that while I must assume that conditions of consent will be complied with, I must also be satisfied on the evidence that those conditions (in this case non-exceedence of the TELs) are capable of being implemented and complied with in practical terms. [045] My reservations are as follows:  The EPA guidelines suggest that three monitors should be used downwind of each ventilation activity at the edge of the buffer zone. If we assume that Genera and Envirofume are each fumigating only one set of on-shore logs concurrently, then six sets of monitoring data (occurring at three minute intervals) will need to be obtained, combined, assessed and predictions made of whether or not the TEL will be exceeded at the POT site boundary well before any such exceedence occurs. No evidence was presented on how that ‘real time’ assessment process would be undertaken or that it was in fact practically achievable; The complexity of above situation would potentially be compounded if each company was fumigating more than one set of logs (with each set being                                                               41 Statement of Evidence of Andrew Curtis on behalf of the Fuel Companies (Z Energy and Mobil Oil NZ), paragraphs 5.3 to 5.5. 13    Envirofume Limited  Application 68152  separated by 100m), if containers or ships were also being fumigated, or if onshore log fumigation was occurring in different POT fumigation zones;  As noted by Mr Curtis and confirmed by Mr Hilton, third parties (stevedores and marshallers) also influence the location and timing of fumigation activities, complicating matters even further;  There is no compunction on Genera to cooperate with Envirofume and provide them with its ‘real time’ monitoring data and no evidence was presented indicating that such cooperation would in fact occur. The Applicant’s Reply suggested that this could be addressed by a condition precedent that required Envirofume to procure an updated fumigation procedure document from the POT, specifically addressing procedures applying to multiple operators, before the Envirofume consent could be exercised.42 I accept that such a condition could be imposed, but that still does not demonstrate to me that the ‘real time’ assessment process discussed above is capable of practical implementation;  In that regard, I also accept (based on my own examination of the document) the reporting officer’s advice that: “Further, the [existing Fumigation Procedures for the Port of Tauranga, Version 2, March 2015] procedures manual does not contain a system, or even an outline framework, for managing more than one fumigation operator on the POT site, nor does it address the HSNO Controls expectation that the person in charge of the site will continuously and proactively manage the real time monitoring results, and undertake the necessary calculations to determine real time compliance with the TELs.”43  Mr Hilton advised that the hand-held meters proposed to be used by Envirofume have a sensitivity of 1 ppm. Therefore any methyl bromide concentrations less than 1 ppm would be recorded as a zero reading. However, I note and accept that in their Reply the Applicant indicated that they would accept a condition requiring the use of a PID monitoring device that has a minimum resolution of 0.1ppm44;  Mr Hilton advised that for the passive ventilation of log stacks a raised tarpaulin could be lowered within one minute, however it would take up to 15 minutes to replace the water tube seals around the edge of the tarpaulin. In response to this issue the Applicant stated in Reply that the tube seals could be provided in four sections, two along the sides and two across the ends of the log stacks. It was then suggested that only the two ends would need to be drained for ventilation, thereby maintaining the seal along the sides of the log row throughout the ventilation.45 However, it is not clear to me how that would work in practice when Mr Hilton’s evidence was that the ends of the tarpaulins are lifted by a fork lift and so some significant portion of the side seals must also be lifted clear of the ground at that time;  The use of hand-held meters at ground level (human height) may not detect methyl bromide within the air column when the methyl bromide is being mechanically ventilated through a stack 6m above the ground level. This is because the plume will be aloft due to the release height and exit velocity and will possibly make landfall at some distance from the release point dependant on                                                              42 Closing Legal Submissions for Envirofume Limited, 21 March 2016, paragraph 40. Memorandum: Reporting Officer’s reply, Reuben Hansen; Bay of Plenty Regional Council, Contract Consents Officer, 9 March 2016, paragraph 8. 44 Closing Legal Submissions for Envirofume Limited, 21 March 2016, paragraph 59. 45 Ibid, paragraph 57. 43 14    Envirofume Limited  Application 68152  wind conditions46 with the precise location of that landfall being dependant on a number of factors including weather conditions, log stack configuration and downwash effects47;  As confirmed by Mr Noonan in answer to my questions, there are other sources of VOCs in the immediate area that may confound the methyl bromide monitoring results. [046] Based on the evidence available to me, I am not persuaded that the Applicant’s proposed ‘real time’ monitoring of the intended methyl bromide discharges is sufficiently capable of practical implementation such that it can necessarily ensure that the mandatory TELs will not be exceeded at the POT site boundary. I find that this weighs in favour of declining rather than granting the application. [047] Additionally, the Council has some valid concerns about the efficacy of previous methyl bromide monitoring that purportedly showed no exceedence of the TELs at the POT boundary. For example, a report was tabled by the reporting officers outlining audit monitoring undertaken by the Council in 2013.48 With regard to that report the officers advised: “The Council has undertaken some monitoring on the POT site when one log row was being ventilated. The monitoring was undertaken using a PID Monitor with a resolution of 0.1 ppm and the location of the monitoring was approximately 24m from the log row and approximately 3m from the POT boundary. The period over which the monitoring was undertaken was approximately 3 hours and during this time for a period of just over one hour levels of greater than 5 ppm (the WES) were recorded, with peak levels measured at approximately 80 ppm. However, it was noted that during the period the peak concentration was recorded, there were other ventilation procedures occurring in the vicinity that may have contributed to the peak.”49 [048] I have read the 2013 report and it highlights to me that monitoring using hand held meters may not accurately measure actual methyl bromide concentrations in the air. This adds to my reservations about the efficacy of the Applicant’s proposed ‘real time monitoring’ for ensuring that the TELs are not breached at the POT site boundary, even if PID meters with an accuracy of 0.1ppm are used. I find that this also weighs in favour of declining rather than granting the application. 6.4 Recapture [049] The EPA has stipulated that all users of methyl bromide must employ recapture technologies by 2020 such that all discharges of methyl bromide to air cease. As set out in the evidence of Mr Frentz, Envirofume has volunteered consent conditions50 stating that effective recapture of methyl bromide must be achieved for 15% of all log and timber fumigations by 30 April 2016. This increases to 60% by 30 April 2018 and 100% by 30 April 2019. [050] The need for recapture was a matter of concern for several submitters. For example, Steffan Browning sought that 100% recapture be required immediately.                                                              46 Memorandum: Reporting Officer’s reply, Reuben Hansen; Bay of Plenty Regional Council, Contract Consents Officer, 9 March 2016, paragraph 11, first bullet point. Closing Legal Submissions for Envirofume Limited, 21 March 2016, paragraph 50. 48 Fumigation using Methyl Bromide at the Port of Tauranga, Sam Weiss, December 2013. 49 Memorandum: Reporting Officer’s reply, Reuben Hansen; Bay of Plenty Regional Council, Contract Consents Officer, 9 March 2016, paragraph 11, fifth bullet point 50 Condition 9.1. 47 15    Envirofume Limited  Application 68152  [051] Mr Hilton’s evidence was that the Nordiko recapture system discussed in Steffan Browning’s submission and the Value Recovery system discussed by Mr Curtis were not commercially viable in this case. [052] Mr Hilton went on to explain that Envirofume has commissioned a prototype recapture unit and was currently trialling it at the Port of Napier. He explained that further development was required before the recapture unit could operate on a commercially viable scale. 51 When asked about compliance with volunteered Condition 9.1 Mr Hilton advised that it could not be complied with and he suggested that the 2016 date be changed to 2017 and the other dates also be extended by 12 months. Given the necessary 2020 termination date that would not work and so the revised condition would need to require 15% recapture by 2017 while retaining 60% recapture by 2018 and 100% recapture by 2019. [053] Mr Hilton’s candid evidence gives me little confidence that volunteered Condition 9.1 can be complied with, whether or not its target dates are amended as verbally requested at the hearing. In fact, on the evidence presented it seems far from certain that 100% recapture can be practically achieved by 2020 as required by the EPA. I find that this weighs in favour of declining rather than granting the application. 6.5 Cultural effects [054] As noted earlier in this decision report, it appears that Ngati Ranginui, Ngati Pukenga and Ngai Te Rangi have given their written approval to the application. However, Nagti Te Ahi and Ngati He have not. The latter iwi submitted against the applications and were represented at the hearing by Des Heke and Lance Waaka. [055] Mr Heke opposed the application as he was concerned about the health and welfare of tribal members who worked at the POT. He said that allowing any discharge of methyl bromide that could adversely affect the health of those tribal members was inconsistent with the exercise of his kaitiaki responsibilities, that in turn being contrary to section 7(a) of the RMA. He considered that any adverse effects on the health of those tribal members would also be an adverse cultural effect and a degradation of the mauri of the area. [056] Consequently, it is evident that not all potentially affected iwi consider that the application will avoid adverse effects on their cultural values. However, I have previously stated that the WES applies to all workers inside the POT site and that my focus is not on the WES but rather on the TELs at the POT site boundary. Accordingly, while I acknowledge the concerns expressed by Mr Heke, I find that the matters he raises do not weigh in favour of either declining or granting the application. 6.6 Conclusion on effects [057] Based on the evidence I am not persuaded that proposed discharge of methyl bromide to air at the POT site by Envirofume can be undertaken in a manner that will ensure that the mandatory TELs will not be exceeded at the POT site boundary. Nor am I persuaded that volunteered conditions relating to recapture of methyl bromide discharges can be complied with. [058] I find that the evidence of Tina McIvor (representing Steffan Browning MP) provides helpful context when considering the various uncertainties discussed above. She advised:                                                              51 Slides 41 to 43 of a PowerPoint presentation tabled by Mr Hilton at the hearing. 16    Envirofume Limited  Application 68152  “When dealing with this level of uncertainty the Commissioner may like to consider that a person’s exposure is involuntary, the risk will persist over time, the potential adverse effects are irreversible and the risk is not known or understood by the general public.”52 [059] Against that context, in overall terms my assessment of the potential adverse effects of the proposal leads me to conclude that the application should be declined. 7 Statutory Instruments 7.1 Policy statements and plans [060] Given my finding in [059] above with regard to the potential adverse effects of the application, it is not necessary to examine the statutory instruments in forensic detail. Suffice to say that the application is contrary to a number of objectives and policies in the Operative Regional Policy Statement and the Operative Regional Air Plan, including: RPS Objective 1 The adverse effects of odours, chemical emissions and particulates are avoided, remedied or mitigated so as to protect people and the environment. RPS Policy AQ 2A: Managing adverse effects from the discharge of odours, chemicals, and particulates Protect people’s health and the amenity values of neighbouring areas from discharges of offensive and objectionable odours, chemical emissions and particulates. RAP Objective 2 Avoid, remedy or mitigate the adverse effects of all discharges of contaminants into air on the environment which includes the effects on: ecosystems, human health and safety, crops and livestock, amenity values, cultural values, the mauri of natural and physical resources and the global environment. RAP Policy 1(a) Significant adverse effects of discharges of contaminants into air should be avoided. RAP Policy 1(b) Adverse effects of discharges into air of contaminants that cannot be practicably avoided should be remedied or mitigated RAP Policy 3 Discharges into air of contaminants identified as hazardous air pollutants or carcinogens (Schedule 3 – Hazardous Air Pollutants) are to be avoided, or where avoidance is not possible, the quantity of discharge is to be reduced using best management practice to acceptable levels, which are relevant national or international standards or guidelines. [061] When having regard to these provisions, I find that the adverse effects of the methyl bromide discharges are not avoided as there is no certainty that the mandatory TELs can be met (not be exceeded) at the POT site landward boundary or that the public can be excluded from the CMA adjacent to the POT wharves where the TELs will be exceeded. That is clearly inconsistent with RAP Policy 3. Any resulting adverse                                                              52 Oral Submission of Steffan Browning MP to the Resource Consent Hearing, Application RC68152 by Envirofume Regarding Methyl Bromide, 8 March 2016, paragraph 2.6. 17    Envirofume Limited  Application 68152  effects on human health from the exceedence of those TELs would be significant and potentially fatal53 and those effects cannot be remedied or mitigated. 7.2 Section 105 of the RMA [062] With regard to section 105 of the RMA, I find that the area outside the POT site boundary is a sensitive environment as it contains people who may be unwittingly exposed the methyl bromide discharge at concentrations that exceed the EPA’s TELs (section 105(1)(a)). I accept that Envirofume has valid reasons for seeking this discharge consent, as it wishes to fumigate logs within the POT site (section 105(1)(b)) and that short of utilising 100% recapture technology immediately there is no alternative environment into which the discharges can reasonably occur (section 105(1)(c)). 8 Part 2 matters 8.1 Positive effects [063] In section 6 of this decision report I addressed the potential adverse effects of the proposal. It is important to also consider potential positive effects. In this case Mr Frentz provided planning evidence on what he considered to be positive effects. These essentially involved increased competition in the provision of fumigation services at the POT which he considered would in turn result in increased innovation; greater awareness of the effects of the ventilation activity; better, more accurate and timely monitoring and more detailed reporting; and broader economic benefits for New Zealand by way of price differentials that reduced costs to the exporter.54 [064] I am not persuaded that I should place much weight on these suggested positive effects for two reasons. Firstly, the purported innovation, awareness and economic effects are speculative in nature and were not supported by any industrial research, marketing or economic evidence. Secondly, monitoring and reporting are routinely required of consent holders and they routinely improve in quality over time as monitoring results are received, audited and evaluated by the council. That can hardly be called a positive effect. 8.2 Part 2 [065] Part 2 of the RMA sets out the purpose and principles of general application in giving effect to the Act. I understand that the RMA has a single purpose, which calls for an overall broad judgement of potentially conflicting considerations, the scale or degree of them, in terms of their relative significance or proportion in promoting the sustainable management of natural and physical resources.55 The enabling elements of section 5 are not absolute or necessarily predominant and they must be able to coexist with the purposes in paragraphs (a) to (c) of section 5.56 [066] Based on the evidence, I find that the proposed discharge of methyl bromide to air will not enable people and communities to provide for their social and cultural wellbeing nor for their health and safety (section 5(2)). Potentially significant adverse effects on human health are not avoided and if they arise they cannot be mitigated or remedied (section 5(2)(c)).                                                              53 As discussed in the evidence of Tina McIvor (appearing for Steffan Browning) and the BOPRC December 2013 monitoring report that could include motor neurone disease (MND) which is a fatal neurological disease. Evidence of Keith Frentz on behalf of the Applicant, Evidence topic: Planning Assessment, dated 23 February 2016, paragraphs 5.54 to 5.56. 55 Green & McCahill Properties v Auckland Regional Council [1997] NZRMA 519 (HC). 56 Day v Manawatu-Wanganui Regional Council [2012] NZEnvC 182 [5-215] (not questioned on appeal: Horticulture NZ v Manawatu RC [2013] NZHC 2492) 54 18    Envirofume Limited  Application 68152  [067] Section 6 of the RMA identifies matters of national importance that I am required to recognise and provide for. I find that the proposed discharge of methyl bromide to air will not maintain and enhance of public access along the coastal marine area (section 6(d)) and it may potentially not accord with Maori culture (section 6(e)). [068] Section 7 directs that in achieving the purpose of the RMA I must have particular regard to some eleven listed matters. The applicable matters in this case include sections 7(a), 7(c) and 7(f). I find that the proposed discharge of methyl bromide to air is inconsistent with each of those sections. [069] Section 8 directs me to take into account the principles of the Treaty of Waitangi (Te Tiriti o Waitangi). I have done so to the extent that those principles are consistent with the scheme of the RMA. I note that the Treaty of Waitangi is a partnership between the Crown and Maori, however in my view the Applicant has been respectful of the Treaty principles and has sought to reflect these principles in their pre-application consultation with tangata whenua, as outlined in the evidence of Mr Hilton. [070] In overall terms I find that the application is contrary to Part 2 of the Act. 9 Determination [071] Pursuant to the powers delegated to me by the Bay of Plenty Regional Council under section 34A of the Resource Management Act 1991, I record that having read the application documents, the officer’s report, the submissions and the evidence presented at the hearing, and having considered the various requirements of the RMA, I find that: a) There is no certainty that the proposed discharge of methyl bromide to air will meet (not exceed) the mandatory tolerable exposure levels (TELs), set by the EPA, at the landward boundary of the Port of Tauranga site; b) There is no certainty that members of the public can be effectively excluded from that part of the adjoining coastal marine area within which the TELs will be exceeded; c) Consequently significant adverse and potentially fatal effects on human health are not avoided. Any such adverse effects should they occur cannot be remedied or mitigated; d) The application is inconsistent with significant provisions of the Operative Regional Policy Statement and the Operative Regional Air Plan; e) The purported positive effects of the application were not supported by qualified evidence; and f) The proposed discharge of methyl bromide to air is contrary to Part 2 of the RMA and so the purpose of the RMA would be best achieved by declining the application. 19    Envirofume Limited  [072] Application 68152  I therefore decline the resource consent application number 68152 sought by Envirofume Limited57 for the discharge of methyl bromide to air in relation to the preshipment fumigation of export logs at the Port of Tauranga Mount Maunganui Wharves site for the reasons listed in [071] above and as further discussed in the body of this decision report. Signed by the commissioner: Rob van Voorthuysen Dated: 29 March 2016                                                              57 The applicant was initially Urlich Milne Lawyers’. 20    Envirofume Limited  Appendix 1 Application 68152  Appearances Independent Commissioner R Van Voorthuysen Applicant Helen Atkins (Counsel) Garry Hilton (Envirofume Chief Executive Officer) Mathew Noonan (Air Quality) Keith Frentz (Planning) Submitters For (Ngāti Ruahine)  Lance Waaka and Des Heke (Ngāi Te Ahi and Ngāti He) For Z Energy Ltd and Mobil Oil NZ Ltd Fuel Companies  Andrew Curtis and David Le Marquand For Steffan Browning MP :  Tina McIvor and Phillip Spanswick (Organiser Rail and Maritime Unions) Bay of Plenty Regional Council Reuben Hansen (Consultant) Shane Iremonger (Environmental Scientist) Dylan Makgill (Team Leader Consents) Sam Weiss (Senior Project Implementation Officer) Sue Cubbon (Committee Advisor) Also in attendance Mary Hill (Cooney Lees & Morgan) David Kriel (Manager Business Logistics OJI Fibre Solutions (NZ) Ltd) 1