Crown contaminators ‘immune’

Local councils cannot prosecute the Defence Force for toxic fire foam pollution, but are expected to investigate industries also using PFAS chemicals.

Regional and territorial councils have been given a list of industries known to use the toxic chemical PFAS, so they can check whether it leached into land or water, a new Cabinet paper says.

Those landowners include Defence Force bases Woodbourne, in Marlborough, and Ohakea, in Manawatu, as base firefighters used the foam for decades before it was banned in 2006.

While local councils are to ‘‘investigate and manage’’ polluters under the Resource Management Act, they are unable to prosecute the Crown for pollution offences, a legal expert says.

A Cabinet paper released by Minister for the Environment David Parker outlined how the nationwide ‘‘all-of-government’’ programme would help local councils identify and manage sites where PFAS, or per and poly-fluorinated alkyl substances had contaminated land or water.

The programme involved officials from the Ministry for the Environment, New Zealand Defence Force, Ministry for Primary Industries, Ministry of Health, Environmental Protection Authority, Crown Law Office and the Department of Prime Minister and Cabinet.

Central Government would ‘‘act on behalf of the polluter’’ for Crown-owned land, such as air force bases, the paper said.

The Defence Force started testing private properties in December to determine the spread of the contaminants, finding the chemicals had contaminated some drinking water near Ohakea and Woodbourne, sparking health fears.

The Defence Force’s report on the results said some landowners or occupants were also using contaminated water for stock watering and irrigation purposes.

The ‘‘new and emerging contaminant’’ had been used worldwide since the 1950s in firefighting foams at airports, ports and other industries, as well as in furniture protectants, floor wax, treated fabrics, paper products, non-stick cookware, food packaging, and insecticides, the paper said.

A spokesperson said the programme was still working out where activities that used PFAS ‘‘could potentially be a problem’’, but there were some industrial activities that would be treated as a higher priority than others, such as airports and ports.

Councils could prosecute private companies through the Environment Court where they may be fined or ordered to pay for the clean-up of contaminated land, the spokesperson said.

‘‘The RMA includes provisions, such as abatement notices and enforcement orders, issued by the Environment Court, to force compliance with RMA obligations and impose liability. Decisions as to whether, and if so what, enforcement actions may be taken are considerations that individual councils are required to make.’’

Marlborough District Council compliance manager Gina Ferguson said the council’s in-house land scientist was going through the list of industries to work out which ones had operated in Marlborough. They were mostly manufacturers, she said.

The council would assess those sites to see whether land or water had been contaminated.

‘‘Our primary concern is to ensure there are no adverse effects on the environment or human health.’’

Private companies responsible for PFAS contamination could be ordered to remediate the site, or the industry could be added to the list of Hazardous Activities and Industries List and companies would have to get resource consent.

When the scale and effects of the contamination had been determined, the council would work with the all-of-government programme to decide on mitigation measures, Ferguson said.

Aside from regular meetings with a technical advisory group, there was little extra work for the compliance team as of yet, Ferguson said.

‘‘If the land scientist found there were 20 different sites, of course that will contribute to our workload.’’

But while private companies could face prosecution, the Defence Force could not be prosecuted, according to an RMA expert.

Auckland Law School research fellow Dr Kenneth Palmer said the Defence Force was part of the Crown and ‘‘enjoys the immunity of the Crown from prosecution’’.

Furthermore, the Environment Court could not order the Crown to clean up the PFAS contamination, Palmer said.

But a council could file a civil claim for damages in the High Court if the contamination damaged a municipal water supply and the council incurred costs, he said.