Let's be honest, yesterday's withdrawal of Hawkes Bay Regional Council's prosecution of Hastings District Council is humiliating. It is yet another in a series of HBRC missteps since the Havelock North gastro outbreak occurred in August this year.
At the risk of repeating myself HBRC has no direct authority in public health matters. The lead agency in investigating a public health event is the Ministry of Health either directly or through the public health unit at a DHB. Yet HBRC took it upon itself to conduct an investigation into what caused the outbreak. Much of the evidence that was collected was necessary for the government's Inquiry but it should never have been collected within the context of an investigation into whether someone had committed offences under the RMA.
I have no hesitation in describing the investigation as biased even bordering on unprofessional. Although the report starts:
This report has been prepared for the Chief Executive of HBRC to outline the process and findings of the
investigation undertaken by HBRC to determine whether any party has committed an offence under the
Resource Management Act 1991 (RMA).
in fact the entire investigation appears to have been conducted with a single outcome in mind: to prove that engineering failures by HDC caused the gastro outbreak.
For that to be so all other possible sources needed to be ruled out. There is very little substantive investigation into other possible sources - literally just 4 paragraphs. For instance, HBRC confidently states on p59 of its report that "[t]he pumping does not capture the water from the Mangateretere Stream." Except that it probably does and HBRC know that. During yesterday's hearing HBRC were forced to admit that they knew that there was a pathway from the Mangateretere Stream into the aquifer. That one admission in court pretty much invalidates this entire report.
There is still a lot of useful information in this report despite its narrow focus. It is almost certainly true that contaminated water could make its way to the HDC well-heads. But that is a long way from saying that that water definitely entered the water supply that way. Even HBRC's own engineering consultant (bearing in mind that regional councils don't have any expertise in the engineering of public water supplies) is ambiguous in his conclusions about the security of the well-heads:
Under such conditions a pathway may be established which enables surface runoff to have entered Bore 1.
"It's possible" is a long way from a definitive conclusion. Even before reading this report I thought HBRC's case was pretty weak. Now it looks like it is non-existent and HDC are magnanimous in agreeing to cop to an infringement in place of the prosecution.
Why would HBRC pursue this prosecution even when all the same information would come out in the Government Inquiry? Who knows? But this debacle throws up a fairly major problem for the Inquiry. There are question marks over whether HBRC are participating in the Inquiry in good faith and whether their evidence can be relied upon. They are the experts on the hydrogeology of the region but an independent investigation or review of HBRC data probably needs to be carried out before the Panel can trust it.
There is also a good case for the government to appoint commissioners to the HBRC to see it through the Inquiry.
Updated 9:23pm with Dominion Post link.
The Government Inquiry into Havelock North Drinking Water got underway today. But it is only working on what is known as "Issue 8". The Inquiry was directed as part of its Terms of Reference to ensure that it hears concerns about the short-term supply of drinking water to Havelock Nth - especially over summer - and to direct parties to take any actions that may be required to ensure the Havelock North drinking water is fit for consumption. Effectively the Inquiry has been asked to act as an independent arbitrator between Hastings District Council, Hawkes Bay Regional Council and the Hawkes Bay District Health Board. And fair enough too as it turns out. RNZ are reporting that HDC are reluctant to join a three-way working party between HDC, HBRC and HBDHB to organise the re-starting of Brookvale No. 3 Bore for the obvious reason that anything they say or do could be presented by HBRC in their prosecution of HDC.
Interestingly I also heard on the Checkpoint programme a reference to Inquiry head Lyn Stevens criticising HBRC for withholding evidence on a possible connection between the Tukituki aquifers and the Heretaunga Plains aquifer. One original submitter to the Inquiry was quite certain that there is a connection high enough to have impacted the Havelock North water supply. Definitely something to watch for. I can't find a web reference so we may have to wait for the transcript of the day's proceedings to be published.
Not quite what I heard on RNZ but the Dominion Post have reported that HBRC withheld evidence of a connection between surface water and their own monitoring bore located close to the Havelock North water supply bores. They report Inquiry head, Lyn Stevens as "not impressed" that this information had not been supplied immediately to the Inquiry.
The "Issue 8" part of the Inquiry is only set down for two days then nothing further will happen until late January.
Hastings District Council have entered a plea of not guilty to the two charges brought by the Hawkes Bay Regional Council alleging a failure to abide by conditions contained in HDC's consent to draw water for the Havelock North water supply.
It's both bad and good. Bad in the sense that the Government Inquiry will now definitely be put off until the end of January. While the court case is unlikely to turn up anything of use to the wider public of New Zealand the Inquiry will. So any delay to the Inquiry is unwelcome. And bad in the sense that we all would have welcomed HBRC having had the good sense that this prosecution was not in anybody's interest and so withdrawing it. And bad in the sense that residents of Hastings District will be paying the legal fees of both sides.
But good in the sense that HDC are not simply caving in as councils so often do. Should the prosecution be successful there will be less incentive to look at how well HBRC has performed in managing the Heretaunga Plains and Tukituki River catchments. And this other issue is vitally important to the whole country - way more important than whether HDC sealed the top of their water bores or not.
As I have said before the condition that was allegedly breached is very general; HBRC never did any work to check whether the condition was being met during its annual compliance checks; and they have no internal expertise in the design and operation of water supply systems anyway. Despite HBRC Councillor Neil Kirton's cockiness over the prosecution it will be difficult to win. And it will likely boil down to "my consultant is better than your consultant".
Still we will all find out in January when the case is heard.
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
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.
There will be plenty of blame to go round in the Inquiry into Havelock North Drinking Water so no-one needs to fear missing out. But how it is divvied up will depend on what the Inquiry decides was the cause of the outbreak. We have a lot of detailed evidence yet to be given in court and the Inquiry. But from what has already been published we can identify three major scenarios as to what happened. And the the three main players, Hastings District Council, Hawkes Bay Regional Council and the Ministry of Health will fare better or worse depending on the final determination.
What we know
The cause of the gastric disease was Campylobacter. Campylobacteriosis is the most common form of water and food borne illness in NZ. And poultry is the most common source of this disease in NZ. However, in this case, sheep droppings were almost certainly the source. The question is how did bacteria get from sheep get into the Havelock North water supply?
There is no suggestion yet that the contamination entered the distribution network after safe water had been drawn from the well/s so that restricts the inquiry to how dirty water got to the bottom of the well/s in the first place.
We also know that the outbreak occurred just after a heavy rainfall/flooding event. There is not much in the documentation provided so far to indicate whether that was particularly relevant but we shall see.
The theoretical ideal
The various possible threats to human health from contaminated water are supposed to be prevented either through only supplying safe groundwater or treating water thoroughly before it is consumed by humans. For a better explanation of the science go here. In Havelock North only safe groundwater was supposed to go out in the pipes. The diagram below shows how this works - not only in Havelock North but in many other water supplies around the country:
OK it's a cow but we are talking sheep here. So groundwater that started its life way up country is isolated from surface contaminants by the impervious layer of solid clay or whatever. By the time the water gets to the bottom of the well it is no threat to human health. On the surface, contaminants in animal faeces may get soaked into the ground by rain but they float along the surface layer and don't get into drinking water.
Scenario A - the well was faulty
The first scenario that will get tested is whether the well that draws drinking water up from the depths to be distributed was poorly constructed.
Drilling a hole through the impervious layer obviously creates a weakness. When it comes to court this week Hawkes Bay Regional Council will allege that Hastings District Council failed to seal the top or the sides of their well correctly. This would allow contaminated water to flow from the surface down the sides of the well and then get drawn back back up through the well into the water supply.
If proved this is pretty much the slam dunk. The techniques for creating what is called a sanitary seal around the well are well known and are contained in the New Zealand Drilling Standard. Proof will be difficult because HDC have at least two independent engineer's reports stating the well-heads are safe. HBRC will also have to explain why they signed off on the safety of the well-heads year after year then changed their minds after a major incident. As will the Drinking Water Assessor working for the Ministry of Health.
But a poorly constructed well would definitely make HDC the sole culprit.
Scenario B - the impervious layer was broken
Hastings District Council appear to be lining up to allege that Hawkes Bay Regional Council consented earthworks that damaged the impervious layer and allowed contaminated water to enter the "secure" aquifer upstream from the water intake.
Apparently it is possible that earthworks (even relatively shallow ones) can disturb the impervious layer enough that it is no longer impervious.
From a purely legal point of view this would put HBRC firmly in the frame. Remember that since 2008 they have been responsible for delivering safe-ish groundwater to HDC. If they gave consent to someone to carry out major earthworks that compromised a public water supply then they are almost entirely responsible for the gastro outbreak.
Even if this is proved HDC and MoH will still need to explain why they did not include the risk of a failure in the impervious layer in their Water Safety Plan. It is a risk and should have been documented even if they did not take any action to prevent or mitigate the risk.
Scenario C - the Hand of God
Of course it is possible that the contaminated water simply found a previously unknown pathway through the impervious layer. In fact this was one of the first suggestions made by a scientist with knowledge of the local hydrogeology. His theory was that prolonged drought had allowed fissures to open in the ground providing that pathway.
It is identical to Scenario B above except that there is no human intervention.
Again HDC and MoH will still need to explain why they did not include the risk of a failure in the impervious layer in their Water Safety Plan. It is a risk and should have been documented even if they did not take any action to prevent or mitigate the risk.
I thought describing how the supply of drinking water is regulated in New Zealand would be a doddle. Little did I know. The picture below describes some of the entities and relationships involved but it is not comprehensive.
The Legal Environment
From the earliest days of local government until 2008 it was up to each council to provide safe drinking water as it saw fit. Local Medical Officers of Health always had powers to intervene if a water supply got into serious problems but councils were generally only ultimately answerable to themselves.
That changed in 2008 when the Health Act 1956 was changed to make it mandatory for drinking water suppliers to register themselves, comply with Drinking Water Standards, and get a Water Safety Plan approved. The Act also creates offences with stiff penalties for anyone who didn't comply.
The Players
The Ministry of Health is the top dog. It administers the Health Act and the Minister of Health issues the Drinking Water Standards. It appoints the Drinking Water Assessors who work regionally out of a DHB. These assessors have the job of maintaining the register of water suppliers and approving Water Safety Plans. The Medical Officer of Health (also working out of the DHB) has emergency powers in the case of a major public health incident. The MoH contracts out a lot of the technical work to ESR who seem to run a semi-autonomous operation at drinkingwater.org.nz.
The Ministry for the Environment do a little "me-too" work in this area advising regional councils on how to comply with the NES Sources of Human Drinking Water. But they are not really a player.
Drinking Water Standards
These standards have been around in various versions since 1993. They mainly specify what levels of contaminants are acceptable in drinking water. There are some engineering standards dotted around - most significantly a brief requirement for securing well-heads.
As part of the pre-2008 voluntary regime water suppliers could seek a grading on their individual supplies. The grading was based on a combination of design of the supply system and track record (shown by the results of regular water testing). Hastings District Council at one point decided to abandon the voluntary grading in favour of concentrating on the statutory Water Safety Plan. A quick look at the database of water suppliers suggests to me that many other councils are also opting out of the grading system or putting a low priority on seeking a grading.
Water Safety Plan
If the Drinking Water Standards are basically the performance targets to meet the Water Safety Plan is basically the "how-to". It is part description of the supply, part operations manual (especially testing), part contingency plan, part plans for the future.
The key thing to remember is that it is a risk management plan. It may or may not arise in the Inquiry but the point is the whole regulatory regime is designed to minimise the risks of a contamination event not to prevent them.
The elephant in the room
I would be surprised if this got an airing in the Inquiry but one of the biggest questions for me is how come the worst public health incident we have had in living memory came after the government takeover?
Prior to 2008 the public health units at DHB's kept a very close eye on major water suppliers but, legally, the relationship was voluntary. The mechanism for nudging councils towards higher standards was the league table of grades assigned to each water supply.
The amendments to the Health Act put the government unequivocally in charge. All we have got for that so far is the worst water-borne illness incident ever.
