Week in Review

Environment watchdog has never brought a prosecution

The Environmental Protection Authority has never undertaken a prosecution.

Formed in 2011, the Environmental Protection Authority (EPA) describes its role as “protecting the environment and the people who live and work in it, for a better way of life”.

Its website says: “We carry out a wide range of compliance activities to protect people and the environment – from raising public awareness through to prosecuting serious breaches of the law.”

It's to-date unused prosecution policy explains the EPA has enforcement responsibilities under the Climate Change Response Act, the Imports and Exports Act, the Ozone Layer Protection Act, the Exclusive Economic Zone and Continental Shelf Act and the Hazardous Substances and New Organisms Act.

Through an Official Information Act request lodged in December and extended twice by the authority, Newsroom learnt it has never undertaken a single prosecution.

During its almost 10-year existence, the EPA has issued a total of two abatement notices. One in 2018 to Shell Taranaki, which it says was complied with, and one in 2019 to Tamarind Taranaki, which is in liquidation.

Newsroom is still waiting for other information relating to the number of investigations and tip-offs the authority has received. Due to different ways data has been recorded since 2011, this information is harder to collate.

While no prosecutions have been undertaken, serious breaches have occurred. 

The EPA led an investigation into perfluorooctanesulfonate (PFOS) used in firefighting foam. It’s classed as a persistent organic pollutant and is toxic to aquatic creatures. Its import has been banned since 2006 and its use and storage since 2011. The foam must be exported for disposal as there is no New Zealand-based facility capable of disposing of it safely.

The investigation found the banned substance at several sites including airports, three sites owned by Shell Taranaki, boats and a tyre company.

The investigation report notes the authority was “surprised” to find the foam at the sites:

“Our investigators and science experts had not anticipated that any such foam would be held in active firefighting equipment or even in storage. Our view at the time and currently is that these substances had been restricted since 2006 and totally banned since 2011, from which point ignorance was no defence, especially in the professional firefighting sectors.”

A total of over 25,000 litres was found at the four Shell Taranaki sites. Groundwater at three sites was found to contain levels above health guidelines and two south Taranaki streams were found to be polluted. Locals were told not to eat fish or eels from either.

Despite "ignorance being no defence" there were no prosecutions.

“We considered that an approach involving prosecution was not needed in the context of addressing the reasons behind non-compliance at the various sites, particularly where those under investigation demonstrated that they were willing to comply, but this does not rule out prosecution in the future, if it is warranted,” the report says.

Newsroom has requested a copy of the abatement notice issued to Shell Taranaki.

A not very authoritarian authority

When asked why the EPA hasn’t undertaken a prosecution, the general manager compliance, monitoring and enforcement Gayle Holmes said prosecution is just one tool in a compliance strategy.

“When we identify suspected non-compliance, the enforcement options we consider must be in line with the EPA’s compliance approach policy. It will often be considered to be in the environment’s benefit to take actions with the aim of altering behaviours (through a compliance order or inspection for example), with the threat of prosecution used as a coercive tool, rather than simply going straight to a prosecution. Similarly, other regulatory regimes (such as WorkSafe’s) will often provide more appropriate alternatives.”

While there's always an argument to be made for a carrot rather than a stick approach, there's a worry no stick at all sends the wrong message.

Forest & Bird’s strategic advisor Geoff Keey said he lacks confidence in the EPA. Jokingly, he suggested the authority needed to remember it’s the Environment Protection Authority, not the Polluter Protection Agency. He points to the lack of prosecutions over PFOS.

“These are sizeable companies. If they’re not doing what they should it’s because it’s in their interests. We’re not talking about a farmer who may have forgotten what he or she did down in the back paddock 10 or 20 years ago.”

He said a clear message needed to be sent.

“If they’re not getting the fines and prosecutions, what incentive is there to change behaviour?”

Keey is not overly concerned about the authority's technical expertise, but he does worry the culture might not be conducive to pursuing prosecutions. He believes the EPA has an important role.

“The public needs to have confidence it’s going to hold companies to account when they do things wrong and that it is going to be there as a champion of the public interest.”

Associate Minister for the Environment Eugenie Sage said the most recent annual report produced by the authority had signalled a shift in focus from processing applications to compliance and monitoring.

“The EPA (or its predecessor, ERMA) has reported annually to the Minister for the Environment on the enforcement of the HSNO Act since 2009, so the previous National government should have been well aware of issues with compliance and enforcement with the HSNO Act and the fact that this is spread over dozens of central and local government agencies. This is a problem this Government inherited and one we are taking action to address.”

An independent review of the hazardous substances compliance system was completed in 2019. It found the current regime not fit for purpose. Sage said agencies are "currently considering how best to respond to those recommendations".

Among its 31 recommendations was a suggestion the EPA take a leadership role.

As well as the review into hazardous substances looking to the EPA for leadership, there are other moves for the authority to take greater Resource Management Act enforcement responsibility. An amendment bill currently being considered will give the EPA enforcement power under the RMA.

In May 2018, Environment Minister David Parker announced an RMA Oversight Unit would be established. The unit is housed within EPA and has been renamed the RMA Enforcement Unit. To date, it’s done no enforcement as it lacks enforcement powers, but has offered its help to councils to assist in investigations. Its focus has left conservationists disappointed.

At the same time, there’s a reform of the RMA under way. One suggestion coming from a source the government panel is likely to take seriously is that the EPA should be given greater powers of enforcement to ensure environmental bottom lines are met. 

From rubber stamping to enforcing

The most recent report from the EPA regarding its enforcement activity notes the authority is looking to hire more staff:

“The EPA is building its capability and capacity in the compliance area according to its most recent report on its enforcement of hazardous substances. This includes recruitment to increase HS [hazardous substances] compliance staff numbers. This does present some resourcing challenges to the EPA and take some time to implement. For example, the HS enforcement officer warranting process takes six months to complete to a legally acceptable standard.”

Staff turnover at the authority remains stubbornly high. A 2014 review noted there was a “relatively high” turnover of 17.5 percent. Since the review the turnover rate has increased, ranging between 18.5 percent to 24.4 percent each year. 

Greenpeace’s executive director Russel Norman thinks shifting the culture within the agency to one where compliance, monitoring and enforcement play a great role is a big ask.

“It was set up, not to prosecute and not to regulate, not to enforce. It was set up to rubber stamp environmental harm. And it's been very successful at that. It'll take an enormous change for that to happen and I suspect it will never happen. It will only ever change if the government decides to disestablish it, restructure, and start again. It's kind of one of the many missing pieces of environmental reform that the government hasn't done.”

Controversy

The authority has come under some scrutiny in recent years with its controversial appointment of an outspoken chief scientist who later resigned. The chief executive Dr Allan Freeth’s letter writing has also raised eyebrows. 

In 2017 he wrote to scientist Mike Joy’s then-employer, Massey University, regarding Joy’s comments about the chief scientist.

More recently he sent an apology letter to attendees of an event where a high school student made a passionate speech about climate change. His reaction to her speech was labelled by Forest & Bird as “inappropriate.”

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