Taranaki Regional Council v A J Cowley Limited DC New Plymouth CRI-2011-043-2428 [2011] NZDC 2103 (15 December 2011)

Last Updated: 26 September 2016

IN THE DISTRICT COURT
AT NEW PLYMOUTH

CR1-2011-043-002428 CRI-2011-043-003192

TARANAKI REGIONAL COUNCIL
Informant

V

A J COWLEY LIMITED
AND
GRAEME ANDREW BLACKSTOCK
Defendants

Hearing: 15 December 2011

Appearances: K de Silva for the Informant H Fronde for the Defendant

Judgment: 15 December 2011

NOTES OF JUDGE B P DWYER ON SENTENCING

[1] A J Cowley Limited (AJC) and Graeme Andrew Blackstock (Mr Blackstock),
have each pleaded guilty to one charge of breach of s 15(1)(d) Resource Management Act 1991, by discharging a contaminant (now referred to as nitrogenous waste) from industrial or trade premises onto land when that discharge was not allowed by a national environmental standard or other regulations, a rule in a regional plan and proposed regional plan, or resource consent. The offending occurred in August and September 2010.
[1] Each has pleaded guilty to the charges, and each is hereby convicted
accordingly.

• [3] AJC operates a cleanfill at Bell Block in New Plymouth. Mr Blackstock operates a business which, among other things, disposes of contaminated material. The contaminated material involved in this offending was pooled liquid and waste fertiliser from the Ravensdown fertiliser plant in New Plymouth. The material apparently comprises a combination of urea, storm-water and lime.
• [3] In February 2011, Mr Blackstock had dumped (or rather an employee had dumped) two loads of waste from the Ravensdown plant into a cleanfill operated by A A Contracting Limited. That waste had contaminated the Mangaone stream, killing large numbers of fish, and has been the subject of a separate prosecution involving a number of parties, including Mr Blackstock1. In the course of investigating the February 2011 incident, Council officers interviewed Mr Blackstock and ascertained that fertiliser waste from Ravensdown had also been dumped by him or his employees into the AJC landfill in August and September 2010. That is the subject of these prosecutions.
• [3] The fertiliser waste is potentially highly toxic. It was discharged into a bunded area called an interceptor at the AJC cleanfill. AJC holds a resource consent authorising operation of the cleanfill. The resource consent limits the contaminants discharged to clean fill or inert materials. Contaminants such as liquids, sludges and industrial process by-products are prohibited. If there is any uncertainty about acceptability of material, then the consent-holder is required to obtain approval for its disposal from the consents manager of the Regional Council.
• [3] The cleanfill is situated in the vicinity of an unnamed tributary of the Mangoaraka stream. However, there is no evidence of contamination of this water body by the waste in this case.
• [3] Tests of soil samples in and around the bunded pit were taken and were consistent with the presence of hydrolysed urea, the contaminant which caused the fish deaths in the incident which had initially alerted the council to this dumping.

Taranaki Regional Council v Ravensdown Fertiliser Co-operative Ltd and Ors DC New Plymouth, CR1-2011-043-002426, 3193, 3192, 15 December 2011.

However, the precise toxic nature of the waste in this case has not been definitively identified.

[8] AJC advised the Council that the bunded pit is sealed and contained. The
Council regards permeability of the pit as untested and notes that it is uncovered (or was uncovered, as I am told it has now been closed) and exposed to rain. The contaminant is highly soluble and migrates easily into ground water. It is unknown what happened in this case. Accordingly, we are dealing with the discharge of a potentially dangerous contaminant but with no evidence of any wider adverse effect beyond the pit into which it was discharged.
[8] The Council submits that Mr Blackstock was extremely negligent in this
case. I note that the August 2010 discharges were arranged by an employee of Mr Blackstock's while he was away overseas. The Council points to Mr Blackstock's lack of knowledge as to the material which was being dumped. The Council says that as a business which carries out dumping of waste he should have been aware of the potential problems of dumping and the toxicity of the waste should have been apparent to him or his employees, or they should have checked precisely what it was they were dumping.
[9] The Council points to the lack of adequate procedures on Mr Blackstock's part for the dumping of waste from Ravensdown for whom he had undertaken work for 19 years. He was aware that waste fertiliser could not be disposed of at cleanfills and should have been aware that the Colson Road landfill is the only landfill in Taranaki.
[9] In response, Mr Blackstock says that toxicity of the waste was not apparent and that he simply believed that he was dealing with fertiliser products which are good for the land. He accepts that there was no written procedure in place, but says that until August 2010 he had never been required to take product off the Ravensdown site. Mr Blackstock made enquiry of AJC if he could dump the waste at the cleanfill on two occasions, and was told this was permissible. He accepts that he should have asked to see the resource consent, but in view of the bunded nature of the facility he assumed that it was in order to put the material there.

[12] The Council contends that the offending on the part of AJC was deliberate. It bases that contention on the lack of proper procedures for accepting material at the landfill and its failure to cheek the nature of the material which it knew was coming from Ravensdown. If AJC had checked with the Council about acceptability of the material, as it was required to do under its resource consent, it would have been told that the waste could not be accepted.
[12] AJC points to its previous good record in checking the waste it could take. It provides copies of correspondence with the Council to establish that. It says that when enquiry was originally made in August 2010 about taking the waste, it told Mr Blackstock's driver that Council approval was needed and that this would take two to three weeks. The driver• explained that the waste had to be disposed of immediately to comply with an abatement notice. AJC's director thought that he was doing the right thing by accepting the waste and putting it into the interceptor bund rather than just allowing it to be dumped anywhere. He was not advised that the waste contained potentially toxic material.
[12] I characterise the offending in the case of each defendant as careless. I refer to the comments which I made in the earlier sentencing today repeating comments which I had made in the Taranaki Regional Council v Archibald and Ors2 case. These defendants are, or were, involved in the waste disposal business, or in the business of receiving waste. They are obliged to know the rules under which they must operate. Environmental concerns aside, knowledge as to the nature and potential toxicity of waste materials being dealt with would seem to be a fundamental safety issue in this industry.
[12] In this case, the defendants either transported or accepted waste material from the Ravensdown industrial plant with no knowledge of or enquiry as to its safety. They should have been alerted to the questionable nature of what was being discharged as they were aware that it had to be removed urgently under an abatement notice. The material was outside the terms of the AJC resource consent and the company knew that. It chose to take the risk.

[16] In light of those findings I consider the appropriate starting point for penalty
considerations. I consider that the starting point ought to be the same for both defendants. Although the aspects of their negligence were different they each contributed to the final outcome of illegal discharge. As with the previous offending dealt with today, either defendant could have prevented it if appropriate procedures had been in place.
[17] The most significant feature in determining a penalty starting point in this case is the lack of any proven environmental effect. That compares markedly with the earlier case today where there was a devastating effect on wildlife over a wide area. I put this offending at a considerably lower level of seriousness than that other case. The following factors lead me to that conclusion:

• Firstly, again, I note the lack of any proven effect;
• Secondly, some question mark over the precise nature of the discharge and I note the amendment to the charge in that regard;
• Thirdly, the fact that the bund appears to have contained the waste (the contrary certainly has not been established);
• Fourthly, that the dried material contained in the bund was able to be removed and disposed of safely, and
• Finally, I have some difficulty in comparing this offending with the Cudby-Mouland3 sentencing to which reference was made by counsel in that the largely deliberate nature of that offending is different to what we have here.

However, the identified carelessness of both defendants is a counter-balancing factor for me to take into account.

3 Taranaki Regional Council v Cudby DC New Plymouth CR1-2009-021-000154, 28 September 2009 and Taranaki Regional Council v Archibald and Ors DC New Plymouth CR1-2009-021-000150, 154, 149, 1238, 155, 151, 17 July 2009.

[18] Taking all of those factors into account, I determine that the appropriate penalty starting point for both defendants in this ease ought to be the sum of $20,000.
[18] In the case of AJC I note that it was a first offender, there was co-operation with the Council, AJC cleaned up the interceptor bund by removing and disposing of the dried waste. That may be regarded as an appropriate expression of remorse. I also note Mr Cowley's personal expression of remorse delivered directly to the Court today and find that to be genuine.
[18] I consider that a reduction in penalty starting point of 20 percent appropriately recognises those factors and it is agreed that AJC is additionally entitled to a 25 percent reduction in final penalty to mark its prompt guilty plea. That brings me to a final penalty for AJC of $12,000.
[18] There is a remaining matter in contention between the Council and AJC. That relates to the provisions of s339(5)(b) Resource Management Act, which provides:

If a person is convicted of an offence against s 338, the court may, instead of or• in addition to imposing a fine or a term of imprisonment, make I or more of the following orders:

(b) an order requiring a consent authority to serve notice, under s 128(2), of the review of a resource consent held by the person, but only if the offence involves an act or omission that contravenes the consent.

The Council seeks such an order.

[18] In this case AJC has been convicted of an offence against s 338 and the offence involved an act or omission contravening AJCS resource consent, namely the act of discharging a contaminant to land other than in accordance with that consent. Counsel for AJC did not dispute that the provisions of s 339(5)(6) were applicable in this offending, but rather contended that the Court might exercise its discretion not to make the order requested by the Council. AJC disputes the need for such an order on the basis that it is a first offender. The Council responds that

whether or not the defendant is a first offender is an irrelevance and that the issue is protection of the environment.

[23] It is notable that s339(5)(b) contains no criteria for its application. The
Court, accordingly, has a wide discretion as to whether or not to make an order for review. As with any such discretion it may not be exercised capriciously but on a principled basis.
[24] In this case I ask the question whether or not the offence has occurred because of some uncertainty or deficiency in the resource consent which makes it appropriate to review that consent. I am unable to identify any such uncertainty or deficiency.
[24] Conditions 2 and 3 of the consent, which identify what materials may be discharged at the Cowley site, are quite clear in their• ambit and condition 4 provides that if there is any uncertainty as to the acceptability of a particular material then AJC is to check with the Council and get written approval. That process is clear and AJC has followed it in the past. The problem arose in this case because AJC chose to ignore those conditions, not because it misunderstood them.
[24] There was some suggestion that AJC misunderstood the extent of the site which was subject to the controls of the resource consent, but that is apparent on the face of the consent and is, in effect, conceded by AJC's statement that it intended to get Council approval for the offending material and by this guilty plea.
[24] The Council says that it is appropriate to review the consent. It points to alleged misunderstandings on the part of AJC as to the extent of its consent and that it did not appreciate the nature of the material it was dealing with. It points to contended inadequacies in a number of the conditions which it wants to review.
[24] I have considered those matters and in no instance can I find any connection between the offending in this case and the conditions in question. Even accepting that there may be inadequacies in the conditions of consent (and I make no final

conditions in 2002 and 2008 and failed to correctly do so because of administrative errors. There is at least some flavour of the Council endeavouring to use s 339(5)(b) as a backdoor means of carrying out such a review but again, I make no final determination in that regard.

[29] Ultimately, I decline to order the review sought by the Council because of the lack of any obvious connection between the offending or circumstances surrounding it and the conditions of consent. I further note that the consent is due to expire in 2014 in any event.
[29] Insofar as Mr Blackstock is concerned, I note his acknowledged co-operation with the Council. The Council became aware of this offending because of his disclosure. He had a previous good record. As with AJC, he should receive a 20 percent reduction from the penalty starting point of $20,000 to reflect those factors. And further, he should receive a further 25 percent reduction to reflect his prompt guilty plea, giving a final penalty outcome of $12,000.
[29] I have considered the overall level of penalty imposed on Mr Blackstock for this and the other offending for which he has been sentenced earlier today, together with the parties involved in that offending. I consider that overall the total penalties imposed on Mr Blackstock (they total $42,000) are not insubstantial, but they are appropriate. I note that no issues pursuant to s 40 of the Sentencing Act 2002 have been advanced to the Court.
[29] Accordingly I formally determine as follows:

• The defendant A J Cowley Limited (CRN 0999) is fined the sum of $12,000. It will pay solicitor costs in accordance with the Costs in Criminal Cases Regulations, fixed by the Registrar if need be, and Court costs $132.89.
• The defendant Graeme Andrew Blackstock (CRN 0973) is fined the

Costs in Criminal Cases Regulations, fixed by the Registrar if necessary, and Court costs $132.89.

In each case I direct that the fines, less 10 percent Crown deduction, are