NZ’s toxic substance system plagued with problems
Despite 85 agencies involved with hazardous substance compliance there’s little leadership, no clue where the next toxic disaster site is likely to be, and no system to ensure polluters have the money to clean up their mess.
In Ruakaka, drums of flammable and toxic solvents stacked three high on rotting pallets teeter.
Stored outdoors, they’re at the mercy of the wind, rain and Northland sun. On a hot day, dull thuds can be heard as dented drums expand in the heat. Underneath them, even during a tinder-dry drought, areas of the ground are wet.
Over time, labels have worn off. What’s in the drums is a guess based on an array of chemicals known to be stored at the property. It’s thought this includes nitrocellulose, tetrachloroethene, trichloroethene, printing solvents, toluene, xylene, turpentine, methyl ethyl ketone, acetone, and parts wash. In what quantities is anyone’s guess.
Most of these hard-to-pronounce substances either ignite with a bang, or pollute groundwater and are toxic to aquatic life. The Marsden Point Oil Refinery pipeline is 80 metres away from the property, the ocean lies 500 metres away. At one point groundwater tests showed levels of contamination 1200 times higher than drinking water standards allow.
The owners of the waste received payment to collect the solvents for recycling but haven’t completed the work. They are incapable or unwilling to deal with the mess they’ve left behind. Meanwhile a bevy of authorities have struggled to figure out how to make the property safe.
Most Ruakaka locals have no idea there’s almost a million litres of solvents quietly leaking on their doorstep since at least May 2018.
Equally quiet are the findings of an independent review sparked by the solvents in Ruakaka and a similar issue in Timaru. Completed in June 2019, it was published with little fanfare.
The technical working group’s review of the hazardous substances compliance system found the current system not fit for purpose.
It described a lack of leadership, a lack of tracking and no system to ensure businesses pay to clean up their mess.
Horror sites where dangerous substances have been stockpiled such as the failed solvent recyclers at Ruakaka, the electroplaters in Timaru, and the paper mill in Mataura with ouvea premix stashed within could be the tip of the iceberg.
Toxic waste leadership hot potato
The Hazardous Substances Compliance System Findings Report notes there’s a cluttered compliance, monitory and enforcement landscape for hazardous substances, with 85 different entities having responsibility.
It said this “provides fertile ground for leadership and jurisdictional debates”. Even figuring out which agency should be the lead agency is tricky.
The review noted nobody it spoke to seemed able to provide a complete picture of the compliance system.
WorkSafe has the responsibility for workplaces. Councils play the lead role in non-work places. The Environmental Protection Authority is a regulator, but not enforcer, across workplaces and non-workplaces. The Civil Aviation Authority, the police, NZTA, Maritime New Zealand and Ministry of Health all can have responsibilities depending on where the hazardous substance is.
The history of the Ruakaka solvent site is a poster child of a broken, hard to navigate system.
When enforcement orders initiated by council action were ignored, the matter was brought to the attention of central government agencies. Apparently frustrated by the pace of action the Whangārei District Council asked for the lead role be removed from the EPA given to WorkSafe:
“After an initial flurry, the EPA has been relatively passive in this matter with the positive initiatives coming from central government coming from Worksafe.”
The EPA was more than happy to throw the lead to WorkSafe, however, WorkSafe pushed back and wanted the EPA to keep the role. It retained the lead role until after October 2019, when it began passing enquiries on to WorkSafe and councils.
As EPA chief executive Dr Allan Freeth pointed out to an Environment Select Committee in 2018, he thought reluctance for people to exert the legislative authority was due to a variety of reasons “both in terms of ambiguity in the law, in terms of civil action that could be taken against them … Bearing in mind whoever ends up holding the site ends up holding the cost of fixing it”.
The review recommends it should be the EPA that takes leadership in these situations, suggesting the EPA be given the power to step in and take action when the responsible agency has failed to get a result.
It also noted at present the EPA lacks authority to carry out some of the tasks it’s responsible for, but it also expressed bewilderment at why the EPA hasn’t exercised powers it currently has. At least six times through 43 pages a similar point was reiterated:
“We are uncertain whether the EPA’s apparent reluctance to step up to the plate is due to a lack of strategic intent or concerns about its power to do so due to its view on the law.”
“We haven’t been able to ascertain why the EPA has interpreted its role as conservatively as we have been advised.”
“HSNO [Hazardous Substances and New Organism Act] provides a further opportunity for the EPA to take a leadership role in enforcement. We are unsure that has been exercised to the extent it could be.”
Today Newsroom reported the EPA has never undertaken a prosecution under the HSNO Act, or any other act. Conservationists worry about the message this sends to businesses.
‘We don't know what else is out there’
A second theme of the review was the lack of a tracing system. Once a type of chemical has been approved to be imported, anyone can bring it in, at any volume.
There’s no single track and trace system for agencies to know where a chemical has ended up, or if and how it’s been used or disposed. As the review states: “We don’t know what else is out there”.
The EPA’s Freeth suggested to the Environment Committee there’s more than just Ruakaka and the Concours electroplating site in Timaru where hazardous substances are likely to be stockpiled dangerously.
“My guess is, if there’s one in Northland and one in Timaru, there’s one in Te Kūiti, there’s one in Ōamaru, there’s one in Nelson ...”
New Zealand has around 150,000 workplaces with hazardous substances present. Since 2000, the number that are inspected has plummeted from 20,000 a year to around under 4000.
EPA’s predecessor, the Environmental Risk Management Authority, had been waving red flags about the lack of inspections for many years.
In 2007, a record of the authority's report to the Environment Committee reads: “We note also ERMA’s view that enforcement agencies should conduct more visits than they currently undertake to check that conditions around the use of hazardous substances are being met.”
The same message is given in 2008 and 2011. By 2013, ERMA had been reborn as the EPA, however, the issue of few workplace hazardous substance inspections remained. It noted:
“At the current rates of inspection, a business could expect, on average, a workplace assessment once every 50 years. For many small to medium sized businesses (SMEs), this duration well exceeds their survival period, meaning that some SMEs will be born (new business created) and then die (business closes) without ever having received a compliance visit. This rate of inspection (2 percent) is also well below what is considered to be international best practice (15 percent of workplaces inspected each year).”
In total it appears ERMA or the EPA has formally told the Minister for the Environment insufficient inspection and enforcement work has been done by WorkSafe or its predecessors seven times, twice in 2009, once in 2010, twice in 2012, and once in 2013 and 2014. As far as Newsroom is aware, no formal reports have been made since 2014, although clarification on whether any reports were made between November 2018 and now has been requested.
Dr Allan Freeth, who took over the chief executive role of the EPA in 2015, told the Environment Committee in 2018 there was a plan to address chemicals lurking in the back of work sheds. It relied on asking councils nicely.
“We’re in discussion with territorial authorities, regional councils. Loosely, we’ve called it ‘Bring out your dead’ sort of thing. Tell us if you know of a site or you suspect a site in your area, or it’s been a site you’ve been trying to deal with for a number of years and haven’t been able to do. We’re in really good discussions around that to find those sites.”
Freeth has also talked at length to Newsroom about creating a chemical map of the country, but mentioned the difficulty in obtaining data.
Pollute and walk away
A third theme to emerge from the review is the difficulty covering the costs to clean up toxic sites. The Timaru electroplaters with 90,000 litres of toxic chemicals cost taxpayers $1 million to make safe. A third party estimate for cleaning up the Ruakaka site has been kept confidential at this stage while negotiations are ongoing.
The independent review points out cost recovery is an important part of a fit for purpose compliance system and the principle the polluter pays should be implemented.
“The taxpayer and government should be the last resort funder unless the cost is a legacy issue arising from once approved, now banned, substances.”
Calling the current system “deficient”, it said overseas there were a variety of financial assurance tools used to make sure there was money for cleanups.
Like other countries, New Zealand does have a contaminated site cleanup fund. It has an annual budget of $2.63 million - a figure the review calls inadequate. It suggests a possible option of a levy developed in parallel with a track and trace system where volumetric or weight-based levies are gathered to fund any future cleanups.
The lack of a polluter pays mechanism has meant the Ruakaka site has remained a potentially explosive and quietly leaking danger while authorities have struggled to get the two companies involved to clean it up.
Regional council monitoring in 2018 and 2019 of groundwater bores close to the site show low levels of hydrocarbons, elevated levels of trace metals and organic compounds contained in solvents present in the water.
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