A new mess to sort out

August 16, 2008
It is almost a decade since the decision was made to clean the poisons out of the country's worst toxic site, at Mapua. Now, $12 million later, we're told that the chemicals are gone - but at what cost? Geoff Collett examines the problems that continue to bedevil the clean-up. --------------------
Nobody relishes having their words thrown back at them, not when hindsight makes those words look foolish or ill- chosen, but the temptation in this case is overwhelming.
So to start, let's flash back to February 2006, when David Benson-Pope was enjoying happier times, as minister for the environment.
He had just paid a visit to the Fruitgrowers Chemical Company site at Mapua - aka New Zealand's most contaminated site - and pronounced the clean-up then in full swing as "a success story of environmental responsibility" and a model for cleaning up other toxic sites.
Fast-forward to little more than a week ago, to the select committee rooms at Parliament, where assorted officials had been summoned to account to the House's local government and environment committee (including now-former minister for the environment Benson-Pope) for the same clean-up.
As committee member, National environment spokesman and Nelson MP Nick Smith saw it, the evidence of what went on and might have gone on during this "success story" made many of the politicians present go "almost white".
Fewer than three weeks ago, Jan Wright, the parliamentary commissioner for the environment - Parliament's independent watchdog on the environment - issued her verdict on the clean-up. It was a bombshell report, raising a series of concerns and questions. Some of them are profoundly troubling for those who were closest to the physical clean-up work, and some challenge the credibility of the Ministry for the Environment.
Much of what she reported reflects rumours and complaints that have circulated through the Nelson community since the clean-up started in 2001 and hit top gear from late 2004.
That the clean-up work may have released deadly poisonous dioxins into the air around Mapua.
That there were frequent problems with the operation to strip pesticide residues out of the soil, problems that the Tasman District Council, as the project's policeman, struggled to sort out.
That tonnes of copper, deadly in a marine environment, have been left in the soil next to the Waimea Estuary.
That other chemicals with the potential to badly pollute the estuary have been similarly left behind.
That groundwater is contaminated.
That the processes and rules put in place by those in charge of the clean-up were breached, or failed, or frustrated, or simply were not signed off.
In the background, some of those closely involved in the project are furiously disputing the commissioner's conclusions. Publicly, officials and politicians responsible for defending the clean-up have done their best to look on the bright side. Mapua no longer wears the ignominy of being New Zealand's most contaminated site, they are keen to point out.
But now they have to face up to the reckoning of the real price paid. The worst of the poisons may be gone, but a steaming mound of something else has been left in their wake.
Paul Reynolds was one week and one day into his new job as the top man at the Ministry for the Environment when Wright's report landed, raising a long list of questions about the ministry's handling of the Mapua project.
After two weeks and four days at the CEO's desk, he found himself before the select committee, trying to explain some apparently hair-raising failings of his new organisation to a line-up of sceptical politicians.
Three weeks and three days into the job, he fronts for a phone interview with the Nelson Mail - but, as he makes clear at the outset, there's still much he doesn't know or understand about precisely what went on over the 10 years or more since the project first came to the ministry. Most of the fundamental questions surrounding those events will, for now, go unanswered, he apologises.
So, he cannot explain why the ministry got as deeply involved in the project as it did, and whether its involvement was beyond the bounds of its competence.
He does not know why it decided to step in when Australian waste management experts Thiess Services pulled out - or why, for that matter, Thiess pulled out, and whether its departure should have been treated as a warning sign, as some have suggested.
He cannot answer questions about accountability and liability, about failings in process and about claims of dangerous activity at the site.
But if Reynolds can only say that he is on a journey of discovery around such questions, he vows that he is going to find out.
He is in the process of negotiating with an unidentified Australian expert in managing toxic contamination, to do a start-to-finish, top- to-bottom internal investigation at the ministry, to pull together the reams of "fragmented" information lying around the place, and to figure out just who did what, when and why.
He hopes to have the finished report in six to eight weeks - and he knows that, for credibility's sake, the answers are going to have to be found by an outsider.
"I'm highly desirous of getting to a point that I'm able to account for what happened, why it happened, why people did what they did and where we are with this, " Reynolds says.
"I think it's very important that I'm able to do that, and the principal reason is if this all goes wrong and it turns into something that is politically so hot, we could end up in a situation where no politician is again prepared to take the risk of in any way going near this stuff. And as a country, that wouldn't be a good outcome for us."
Reynolds accepts that his investigator will probably find that mistakes were made. He promises that he won't be ducking any issues arising, that "Mapua is not something that the Ministry for the Environment is just going to walk away from and throw its hands up".
But his inquiry is just one in a roundabout of investigations.
Two more crown agency inquiries are ongoing, one by the Ministry of Health and one by the Department of Labour, into whether the clean-up affected human health and whether workplace health and safety rules were broken.
The Ministry for the Environment also still has to fulfil some crucial conditions of the clean-up to confirm whether the job has in fact been done and the site really is free of pesticide residue. Its failure to complete a validation report and an independent audit of the site was criticised by the commissioner.
Reynolds says the ministry has now contracted Sinclair Knight Merz (SKM Consulting) to complete the validation report, and hopes that it will be completed by the October 31 deadline recommended by the commissioner ("It might take up to a month longer"). The audit process will only start after that, and once an auditor is found, it could take six months.
Then there is the environment select committee inquiry, which Nick Smith says should be completed before the general election.
And Wright has asked the Office of the Auditor-General to investigate the ministry's decision to push ahead with the clean-up without signing the core funding agreement between it and the council. She apparently sees a potential breach of the ministry's responsibilities around accountability for public money. The auditor-general's office says it is still considering Wright's letter.
The fact that the final verdict on the clean-up is still months away means the final word is still a long way from being spoken.
Environment Minister Trevor Mallard has used that to excuse himself from commenting in any detail on the commissioner's report, saying he will consider its recommendations once he's got all the other reports - batting it off until well after the election, in other words.
He limited himself to a short, five-sentence statement when the report landed, which really said only that "lessons have been learned during the successful clean-up of New Zealand's most contaminated site".
Mallard was unavailable for comment for this article, although he shed a little more light on his position when questioned in Parliament last week by Smith and Green Party co-leader Russel Norman.
Norman asked him whether "with the benefit of hindsight, was the most polluted site in New Zealand . . . surrounded by estuaries and residential dwellings, the best site to trial an experimental and high-risk technology for the remediation of toxic sites?".
Mallard's response: "Probably not." But he told Parliament that it was the council's decision to start the project, not the Government's.
That claim is challenged by Tasman Mayor Richard Kempthorne, who says the record shows it was a joint central-local government process.
Smith, for one, reckons that the officials and the Government are in "a phase of legal butt- saving, and for that reason, there isn't the level of accepting responsibility that there should be". Reynolds denies he is being advised by lawyers about what he should and shouldn't say. But he expects to be confronting that question down the track, as his grasp becomes firmer on what went on in the organisation he has taken over.
And he accepts his minister's observation, that lessons have been learned - "lessons around how complex and difficult these things are . . . around how we run our processes".
The greatest and most glaring irony of the whole thing is the implication, seized on by various critics, that the state agency responsible for guiding the Government on protecting the environment has apparently fallen so short on the standards expected in a flagship clean-up project as seen at Mapua.
As one former minister for the environment in the National administrations of the 1990s, Simon Upton, wrote in his column in The Dominion Post and The Press newspapers this week: "How can any of us have any confidence in the ministry's ability to protect the environment when its own performance has been so woeful?"
The Greens' Russel Norman sees the situation as "so sad - it was for the best of intentions but it really is a botch-up". Nick Smith, who hopes to be the minister for the environment before the year is out, is less charitable, seeing a ministry that was obsessed with getting the clean-up finished to the detriment of all else.
Reynolds promises he is determined to front, once he knows what it is he's fronting for. "I wish to discover what actually happened and I wish to move this thing forward. Because one thing, to be blunt with you, that I think is important, is that we learn and that we don't . . . put ourselves into a position where in the future we duck dealing with these issues.
"And frankly, that's a place where it would be very easy to end up if I wasn't being level-headed about this."



Mapua: questions that still need answers


Big questions still swirl around aspects of the Mapua clean-up, but Geoff Collett finds clear answers are elusive. --------------------
What likelihood is there that poisonous dioxins were released from the machinery that was cleaning the soil?
National's environment spokesman and Nelson MP Nick Smith, and Greens co-leader Russel Norman, have both seized on this as the most alarming possible consequence of the clean-up.
They repeat the advice given to Parliament's environment select committee last week by Parliamentary Commissioner for the Environment Jan Wright, that there was a clear "window" between December 2004 and October 2005 when the conditions were apparently ripe for dioxins to be created by the clean-up.
The commissioner has concluded that the drier used in the process was run at temperatures of 250degC or more, hot enough to convert the organochlorine pesticide residues to dioxin, and filtration equipment intended to trap such emissions was not working. But there was no monitoring. Wright goes no further than saying that dioxins were possibly produced. When, where and how much may never be known.
Smith says the news caused consternation among MPs on the committee.
Ministry for the Environment boss Paul Reynolds says he has to wait for an investigation by the medical officer of health to know whether dioxins were released and harmed anybody. But he is clearly exasperated by the question of what advice he can offer those workers or site neighbours who are worried.
"I am concerned that there are people who feel that they have been exposed to dioxins and are worried that they may be affected.
"I need to find out what the period was. I need to have some work done to find out what the possible levels of exposure might have been. My understanding is that it wasn't for a long period. I've got no idea what kind of concentrations they may have been in. I don't know, for example, what the weather patterns were at the time . . .
"I hope that people in looking at what's been done here might recognise that they've been living next to something that was pretty terrifying prior to it being cleaned up and frankly, I as a person am probably more worried about the exposure of the community to the compounds in the site before it was remediated.
"But I don't want to be quoted as saying 'bureaucrat thinks dioxins less for people to worry about than chemicals in unremediated site'. I'm not saying that. I am deeply concerned about the issue."
What about the copper residue that has been left in the soil around the site?
Copper sulphate was used as an ingredient in the clean-up recipe, despite it being highly toxic to marine life and not specifically allowed for in the resource consents the work was approved under.
The commissioner says 13 tonnes of copper residue remain in the soil, threatening the estuary. Many tonnes of diammonium phosphate and urea were used, too, according to the commissioner's report, and she raises concerns that remnants of these chemicals could leach into the estuary, causing weed growth and related problems.
The ministry has subsequently suggested that it might yet be able to remove the copper, but Reynolds admits that he does not know if it really can.
There is argument about whether the copper should have been used, and whether it is a threat. Reynolds says he is not going to "get caught spinning on the head of a pin" over such arguments. "I recognise the fact that people are concerned that there may be significant amounts of copper in the environment and I'm not going to duck that issue."
Tasman District Council's environment and planning manager, Dennis Bush-King, says his council is relying on the yet-to-be commenced audit investigation of the site (which won't be completed before next year) to pin down what the real problem is, and in the meantime, some additional monitoring is being done.
To Smith's mind, replacing one (he admits much worse) contaminant with another on the estuary edge raises questions as to whether the public has got its money's worth for the $12 million the council and ministry will stump up for the clean-up.
Did the Ministry for the Environment blunder by taking over the clean-up project when the original Australian contractor pulled out in 2004? And why did the Aussies walk?
Former National environment minister Simon Upton reckons this is the "smoking gun" in the parliamentary commissioner's report: the ministry's readiness to step in when Australian hazardous clean-up experts Thiess Services suddenly walked away from the contract in 2004.
The ministry was the crown partner in the clean-up along with the Tasman District Council, expected to find most of the funding and help oversee progress, although the council was responsible for granting and enforcing the resource consents. The parliamentary commissioner has questioned whether the ministry had the expertise to take over from Thiess; as well, its decision to step in as project manager set up conflicts around oversight of the project and its relationship with the council. As Upton argues in his newspaper column, if a company like Thiess wasn't happy to proceed, "why did inadequately qualified corporate managers step into the void?".
The question about why Thiess walked could be critical to understanding whether the ministry walked into a minefield. At the time, its departure was almost unremarked: the Nelson Mail reported a company spokeswoman as blaming "changes in other priorities".
The company did not respond to inquiries this week, in time for this article's deadline. The parliamentary commissioner cites anecdotal reports that the relationship between Thiess and the company operating the clean-up machinery, EDL, broke down.
Smith claims to have been told by Thiess people that they pulled out because "they got scared" about difficulties they were encountering during trials on the site. Dennis Bush-King disputes that - he says that Thiess signed off on proof of performance documents to verify that the process would work - but he won't say why he thinks the Australians pulled out.
Reynolds says there may be contract disputes and legal issues involved. "I don't know. I need to find out."
As for why his ministry decided to fill the void - whether, for example, it feared the whole clean-up was about to grind to an embarrassing and costly halt - he doesn't know either. But again, he wants to find out, and from there to learn the answer to such questions about whether it found itself out of its depth.
What was the upshot of the scrambled lines of accountability and responsibility, caused by the Ministry for the Environment becoming project manager?
For one thing, it made the council's life harder when neighbours complained about disruption caused by the clean-up: noise, dust, bad smells and the like. Throughout, the official line has been that the site managers were always prepared and willing to respond to complaints. The parliamentary commissioner found evidence that the council on occasions struggled to impose its authority on the site, largely because the Ministry for the Environment - as a crown agency - enjoys immunity from the usual enforcement measures provided in the Resource Management Act.
But the commissioner also points out that the absence of a signed contract between the council and the ministry further weakened the council's ability to rein the ministry in. She details occasions where disputes over activities on the site - such as over the operation of the drier in circumstances that could have produced dioxins - led to lengthy to-ing and fro-ing and arguments between agencies over who was in the right.
Bush-King accepts that there were some issues over "timeliness" of sorting concerns out. But "it was a complicated project and there were challenges and I'd like to think that we responded to them in the best way that we could . . . we always tried to work co-operatively with the Ministry for the Environment as the consent holder, as we would with any consent holder".
Smith sees two big issues arising for the law- makers as a result of the Mapua experience: one, the law has to be changed so crown agencies can be prosecuted for breaching the Resource Management Act (he likens it to the Department of Conservation avoiding a Building Act prosecution after the Cave Creek tragedy; the law was similar in that case, and was changed as a result). The other is the case for a new environmental protection agency, a body that can monitor such projects as Mapua rather than leaving it to local (and potentially ill-equipped) councils. Smith hints such a body will feature in National's environmental policy this year.
Who's going to carry the can if big problems are discovered down the track?
It is not yet certain that the site is entirely clean. The commissioner suggests the clean-up did not go as well as was expected in various respects. She suggests there could remain spots of contamination.
The validation report now being prepared for the Ministry for the Environment, and a follow- up independent audit, are expected to be the final word.
Beyond that, it is unclear who will be responsible if problems emerge unexpectedly: an argument over liability was apparently the main sticking point between the council and ministry that stymied the signing of their deed setting out the terms for the clean-up.
The council owns the site and Environment Minister Trevor Mallard has told Parliament that it was the council that decided to start the project (a view disputed by Tasman Mayor Richard Kempthorne), suggesting the Government doesn't intend shouldering all the responsibility.
Reynolds says the liability question is one he expects to have to confront down the track. Smith says that already, lawyers are "crawling" around the issue, with various individuals who fear they have been harmed taking legal advice.
Has the Parliamentary Commissioner for the Environment got it right?
That is not a certainty either and has become a minor political sideshow. Mallard has made it clear that he is not prepared to accept her word as final, not for the moment. EDL declined to comment for this article but made it clear it did not accept the commissioner's criticisms.
Reynolds says he is not going to get into a public debate about whether the commissioner is right or wrong, but he has already told Parliament's environment committee that he does not accept the report in full.
But whatever its truth, it has certainly punctured the picture that officialdom has been keen to present until about three weeks ago: that Mapua was a model for cleaning up toxic legacies.