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No prosecutions from environment watchdog

The agency charged with protecting New Zealand’s environment investigated 20 cases last year but issued no prosecutions.

Data obtained by Newsroom under the Official Information Act shows that the Environmental Protection Authority (EPA) prosecuted no one in the last financial year.

In the same period, it investigated 20 tip-offs and found “compliance issues” indicated in five instances. Of these five cases, two were given “enforcement action” and none were prosecuted.

The data did not include the EPA’s longstanding investigation into contamination from firefighting foams containing the banned chemical PFOS.

Conservation Minister Eugenie Sage has responsibility over the EPA, but would not comment on the lack of prosecutions. A spokesperson for Sage said the issues were “operational”.

The authority said it uses the Braithwaite compliance model to decide how to enforce compliance.

A paper detailing the organisation's attitude to compliance activity, quoted from a general compliance guide for government, was published in 2011.

It says that “responses can range from encouraging and assisting an individual or business to comply where the risk is presented as minor, to revoking an operating licence and bringing criminal or civil court action in cases of serious risk and deliberate non-compliance.”

Greenpeace executive director Russel Norman told Newsroom the lack of prosecutions was concerning.

“If you’re not going to prosecute, that’s going to raise problems when it comes to deterrence,” he said.

Norman pointed to the EPA’s long investigation into the PFOS firefighting foams, which was released on Thursday. The EPA investigated 166 sites, and found foams containing the banned PFOS at several regional airports our sites controlled by Shell Taranaki Ltd, two tug boats, and at a tyre company.

Despite this, no companies were prosecuted, with EPA chief executive Dr Allan Freeth preferring voluntary compliance or the use of compliance orders.

“In all instances, our aim was to secure the best outcome by working with parties, either on a voluntary basis or via a compliance order, to ensure they took the necessary steps to decontaminate or dispose of the foam in line with technical standards,” he said.

One firm to use the foam, Lyttelton Port, was initially reluctant to respond to the EPA's call to action and was eventually slapped with a compliance order. This was despite the use of the foam already being illegal.

The concerns come at a time when there is growing concern that government regulators are neglecting to prosecute infringement, allowing offenders to get off with a warning.

The New Zealand Transport Agency (NZTA) has admitted that it neglected its regulatory function for nearly a decade, resulting in thousands of WoF issuers and other transport service providers being certified to operate when they shouldn't have been.

In one instance, a motorist was killed while wearing a faulty seatbelt only recently issued a WoF by a certifier NZTA was repeatedly warned of. NZTA later revoked his right to issue warrants and noted he should not have been allowed to operate.

The Companies Office has also come under fire for only laying 48 charges against 11 people in the 2017/18 financial year despite receiving 1040 “matters for consideration”.

Bot the Companies Office and the EPA also use Crown Law prosecution guidelines to determine whether to begin prosecution.

One issue facing criticism is the weight the cost is given when determining public interest.

The Crown Law guidelines note: “Cost is also a relevant factor when making an overall assessment of the public interest.

“In each case where the evidential test has been met, the prosecutor will weigh the relevant public interest factors that are applicable. The prosecutor will then determine whether or not the public interest requires prosecution.”

This has itself come under fire as individual agencies are likely to face cost taking cases to court without necessarily reaping the rewards of a successful prosecution. This means any cost benefit or “public interest” analysis can be skewed against enforcement.

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