At first I thought the Inquiry into Havelock North Water had missed the mark in its second report. Media reports indicate the report is highly critical of the Ministry of Health. I would have been more critical of the performance of the local DHB but, of course, DHB's are the Ministry of Health. It is specious to pretend otherwise when the majority of their boards are government appointed.
What really caught my attention was RNZ's interview with Dr Stewart Jessamine, currently New Zealand's top public health official. During the interview Dr Jessamine blamed a "distributed" system where responsibilities for drinking water safety are spread between the Ministry itself, DHB's, and territorial authorities (technically water suppliers as there are many suppliers who are not councils). Jessamine could have also included regional councils.
Why do we have a "distributed" system? Because the Ministry of Health asked for it and Minister of Health, Pete Hodgson, saw the change through Parliament in 2007. I would call it more than disingenuous for Dr Jessamine to blame a system that was created by his own division of the Ministry of Health.
Prior to this time responsibility rested solely with the water suppliers. These water suppliers could voluntarily sign up for a grading system overseen by the MoH but it was not compulsory. Prior to 2008, the MoH had issued drinking water standards for many years. What was been good about the standards was that they were primarily performance based. Councils could be deemed to comply if the quality of tested water continuously met certain specific measures. Councils were free to set their own direction as to how they met these standards as long as contaminants stayed within specified limits.
The changes to the Health Act made in 2007 inserted the MoH (via DHB's) into a role of approving the plans by which councils delivered safe water. An examination of Cabinet papers from the time should show a recommendation from the Ministry of Health for it to be granted greater regulatory powers. And these powers did show up in the amended Health Act. Bearing in mind that the MoH has no capability at all in environmental engineering, the chances of the new regulatory system going off the rails increased quite markedly once the responsibilities for drinking water safety got spread out.
Just to be clear: DHB's (foot soldiers for the Ministry of Health) have the absolute power to control whether a council is a registered water supplier or not. Part of that power includes approval of how a council delivers safe drinking water even though neither the MoH nor DHB's have environmental engineering capability. But, if it fails to gain registration and continues to supply water, a council can be liable for fines of up to $10,000 and a further $1,000 per day that the offence continues. Councils have no choice but to do what the DHB (MoH) asks them to do.
In this context the Inquiry is fully justified in criticising the Ministry of Health for not taking the new responsibilities - responsibilities that it had sought for itself - seriously enough.
Showing posts with label Havelock Nth Inquiry. Show all posts
Showing posts with label Havelock Nth Inquiry. Show all posts
Thursday, 7 December 2017
Monday, 5 December 2016
Honestly...councils don't have to be in the water business
It's a widespread misunderstanding that somehow councils have a statutory monopoly over water supply especially in urban areas.
The following extract from Water NZ's submission to the Inquiry into Havelock North Water is typical
Section 124 of the Local Government Act 2002 is actually just a definitions section. It can be found in a part of the Act specifying the obligations of local government. There is absolutely nothing in sections 124-137 that either puts an obligation on a council to become a water supplier or gives it anything like a monopoly. Mind you, s.130 prevents a council from exiting water supply once it is already doing it.
Councils do have a statutory public health role to assess the quality of water supplies in their territory. I would have thought that that obligation had been largely superseded by the Ministry of Health's upgraded role in the Health Act 1956.
In fact, a quick read of the Health Act 1956 Part 2A Drinking Water only once mentions territorial authorities. This is relatively new legislation that defines how all water suppliers are regulated by the Ministry of Health. In section 69ZH non-council suppliers have to let their TA know if they plan to restrict future access to their supply. It isn't obvious from the legislation what the TA is supposed to do with that information. In all other respects there is no distinction between private and public suppliers.
Mind you, once a council is a water supplier it has all the same legal obligations as anyone else. The distinction really isn't important in the context of the Inquiry.
The following extract from Water NZ's submission to the Inquiry into Havelock North Water is typical
2. The responsibility for the provision of water supply in urban environments in New Zealand lies with Territorial Local Authorities – district and city councils, or with a Council Controlled Organisation. (Section 124 of the Local Government act)
Section 124 of the Local Government Act 2002 is actually just a definitions section. It can be found in a part of the Act specifying the obligations of local government. There is absolutely nothing in sections 124-137 that either puts an obligation on a council to become a water supplier or gives it anything like a monopoly. Mind you, s.130 prevents a council from exiting water supply once it is already doing it.
Councils do have a statutory public health role to assess the quality of water supplies in their territory. I would have thought that that obligation had been largely superseded by the Ministry of Health's upgraded role in the Health Act 1956.
In fact, a quick read of the Health Act 1956 Part 2A Drinking Water only once mentions territorial authorities. This is relatively new legislation that defines how all water suppliers are regulated by the Ministry of Health. In section 69ZH non-council suppliers have to let their TA know if they plan to restrict future access to their supply. It isn't obvious from the legislation what the TA is supposed to do with that information. In all other respects there is no distinction between private and public suppliers.
Mind you, once a council is a water supplier it has all the same legal obligations as anyone else. The distinction really isn't important in the context of the Inquiry.
Tuesday, 29 November 2016
Will HBRC Score an Own Goal?
It's time for me to get more coherent in my looks at the Inquiry into Havelock North Drinking Water. If the Inquiry identifies some holes in the complex web of regulation around drinking water that will be useful for the whole country. Even better if they draw some lessons about the overall approach to regulation.
A good place to start is the multiple ways Hawkes Bay Regional Council and Hastings District Council work together to deliver safe drinking water to the public. The picture below is a schematic showing how the different activities in each organisation fit together for the purposes of providing drinking water. It's not the total picture as the Ministry of Health play a very important role too.
For the purposes of the Inquiry HBRC and HDC interact in three ways to deliver drinking water to residents.
1. Water Supplier
Starting with the main sequence at the bottom note that, in effect, HBRC supply source water to HDC. It's a natural resource but HBRC have total control over who gets to use it. So HBRC are continuously updating their knowledge of the water resource of the region: how much there is and how good it is. Using this knowledge they update their regional plan which tells them, essentially, what consents they can issue for water use.
Little known is an additional legal requirement, the National Environmental Standard for Sources of Human Drinking Water. This forces HBRC to operate its plan in such a way as to ensure clean enough water gets to HDC for drinking purposes. Because HDC wasn't treating the water it extracted in Havelock North, HBRC had to ensure uncontaminated groundwater was available at the bores. This standard also required HBRC to include emergency situations in its consenting decisions.
2. Science Provider
The second relationship is the science that HBRC supplies to HDC to help them in their planning and management of the water supply. District councils don't do their own hydrogeology, they rely on regional councils to provide them with the information they need to understand the risks of operating their supplies.
The key decisions HDC made about where to source water, how to treat it and how to manage the risks around their system - remembering all of these decisions have big price tags attached to them - were based on the information provided by HBRC.
3. Regulator
Finally, HBRC issues the consent to HDC to allow them to take water for a public water supply. And they monitor compliance with the consent.
HBRC's regulatory role is restricted to the elements of the water take that impact water quantity generally and that could impact downstream water quality. They have no role at all in regulating the delivery of safe drinking water.
In the original 2008 consent issued to HDC, HBRC attached 21 conditions. 20 of them covered issues to manage the amount of water taken. The final condition required HDC to secure its wellheads. HBRC has to try to manage all activities - not just public drinking water supplies - to ensure that human activity does not pollute or degrade the natural water resource. So this condition is not attached specifically because it is for a source of drinking water.
Is Hawkes Bay Regional Council About to Score an Own Goal?
Having decided to prosecute HDC for a breach of consent conditions HBRC presumably will argue in court that HDC failed to comply with this condition:
What any of those general requirements might mean in practice is defined by the Ministry of Health who are, in fact, the primary regulator in this case. But Ministry of Health are not a party to this prosecution. So HBRC are on their own, not alleging that the condition of the well-heads was the cause of the gastro outbreak only that HDC didn't maintain the well-heads properly.
If HDC decide to defend themselves they will question how enforceable such a vague condition is. They will ask HBRC to clarify what these practices were intended to be, how they were communicated to HDC, and why HBRC ticked off these structures as compliant year after year. HDC can point to the fact that MoH didn't have any security issues with the well-heads when they issued HDC with a water supply grading.
HDC also have a good case that whatever they did or didn't do was reasonable in the context of how HBRC was carrying out its regulatory function. In particular - and this will crop up again in the inquiry - whether HDC could reasonably rely on regulatory approval given year after year by HBRC.
The spotlight could well turn onto how well HBRC carried out its regulatory duties and should spill over - whether in court or in the inquiry - to how well HBRC carried out its statutory obligations to protect the water source for Havleock North drinking water.
I suspect HBRC would have been better off going through the Inquiry in a collaborative manner hoping that not too much attention would head their way. Too late now.
A good place to start is the multiple ways Hawkes Bay Regional Council and Hastings District Council work together to deliver safe drinking water to the public. The picture below is a schematic showing how the different activities in each organisation fit together for the purposes of providing drinking water. It's not the total picture as the Ministry of Health play a very important role too.
For the purposes of the Inquiry HBRC and HDC interact in three ways to deliver drinking water to residents.
1. Water Supplier
Starting with the main sequence at the bottom note that, in effect, HBRC supply source water to HDC. It's a natural resource but HBRC have total control over who gets to use it. So HBRC are continuously updating their knowledge of the water resource of the region: how much there is and how good it is. Using this knowledge they update their regional plan which tells them, essentially, what consents they can issue for water use.
Little known is an additional legal requirement, the National Environmental Standard for Sources of Human Drinking Water. This forces HBRC to operate its plan in such a way as to ensure clean enough water gets to HDC for drinking purposes. Because HDC wasn't treating the water it extracted in Havelock North, HBRC had to ensure uncontaminated groundwater was available at the bores. This standard also required HBRC to include emergency situations in its consenting decisions.
2. Science Provider
The second relationship is the science that HBRC supplies to HDC to help them in their planning and management of the water supply. District councils don't do their own hydrogeology, they rely on regional councils to provide them with the information they need to understand the risks of operating their supplies.
The key decisions HDC made about where to source water, how to treat it and how to manage the risks around their system - remembering all of these decisions have big price tags attached to them - were based on the information provided by HBRC.
3. Regulator
Finally, HBRC issues the consent to HDC to allow them to take water for a public water supply. And they monitor compliance with the consent.
HBRC's regulatory role is restricted to the elements of the water take that impact water quantity generally and that could impact downstream water quality. They have no role at all in regulating the delivery of safe drinking water.
In the original 2008 consent issued to HDC, HBRC attached 21 conditions. 20 of them covered issues to manage the amount of water taken. The final condition required HDC to secure its wellheads. HBRC has to try to manage all activities - not just public drinking water supplies - to ensure that human activity does not pollute or degrade the natural water resource. So this condition is not attached specifically because it is for a source of drinking water.
Is Hawkes Bay Regional Council About to Score an Own Goal?
Having decided to prosecute HDC for a breach of consent conditions HBRC presumably will argue in court that HDC failed to comply with this condition:
21. All works and structures relating to this consent shall be designed and constructed to conform to the best engineering practices and at all times maintained to a safe and serviceable standard.
What any of those general requirements might mean in practice is defined by the Ministry of Health who are, in fact, the primary regulator in this case. But Ministry of Health are not a party to this prosecution. So HBRC are on their own, not alleging that the condition of the well-heads was the cause of the gastro outbreak only that HDC didn't maintain the well-heads properly.
If HDC decide to defend themselves they will question how enforceable such a vague condition is. They will ask HBRC to clarify what these practices were intended to be, how they were communicated to HDC, and why HBRC ticked off these structures as compliant year after year. HDC can point to the fact that MoH didn't have any security issues with the well-heads when they issued HDC with a water supply grading.
HDC also have a good case that whatever they did or didn't do was reasonable in the context of how HBRC was carrying out its regulatory function. In particular - and this will crop up again in the inquiry - whether HDC could reasonably rely on regulatory approval given year after year by HBRC.
The spotlight could well turn onto how well HBRC carried out its regulatory duties and should spill over - whether in court or in the inquiry - to how well HBRC carried out its statutory obligations to protect the water source for Havleock North drinking water.
I suspect HBRC would have been better off going through the Inquiry in a collaborative manner hoping that not too much attention would head their way. Too late now.
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