Dangerously stored toxic and flammable chemicals need to be stored safely by March 20. Photo: Farah Hancock

An interim enforcement order is a first step in sorting out a million-litre toxic solvent problem in Northland

The owners of the almost-million litres of flammable and toxic chemicals illegally stored in Ruakaka have been given 10 days to make the site safe.

The Environment Court issued an interim enforcement order requiring the two companies responsible to ensure the chemicals are stored safely by March 20. If they don’t, the Whangārei District Council, which sought the order, has the right to enter the property to complete the work. The companies involved in creating the mess would be liable for the costs the council incurred cleaning up the site.

No further chemicals can be brought to the site and an inventory of what’s already there must be produced. All chemicals stored in rusty, corroded or leaking drums must be decanted into safe containers and sealed. Drums stored outside a containment bund need to be moved to an area where they can’t leak into the ground.

The interim enforcement order was applied for on March 2. 

It was granted ex parte – without holding a hearing and without notice being first given to the parties it was sought against. Judge David Kirkpatrick noted after reading a three-page letter from Brian Smith, which was submitted as part of the evidence, that “little if anything would be gained from hearing from Mr Smith or his companies”. It’s unclear if any evidence regarding the second company’s version of events was submitted.

Kirkpatrick called the site “a threat to the environment that requires urgent attention”.

An assessment report from January supplied as evidence “concludes that flammable liquids and ecotoxic substances are being stored on the site, including on unsealed ground outside the site’s bunded areas and that these present a risk to groundwater and to local infrastructure and public health in the event of a fire”.

The companies involved are variations of Brian Smith’s Sustainable Solvents and a second company, Solvent Services. Directors of both companies are also listed on the order. The solvents were collected for recycling via a distillation process. The companies took the money for the solvents but stockpiled them far in excess of the 50,000 litres permitted on the property.

There is a disagreement between the companies about responsibility for the current situation. As part of a remediation agreement, Solvent Services has said it attempted to process the solvents it owned, but parts of the distillation unit needed to complete the task were removed. Brian Smith has said Solvent Services walked away leaving the solvents behind.

Kirkpatrick believes both need to be accountable.

“It does not appear from the evidence that there is significant disparity in their responsibility … it should not fall to Council, in attempting to deal with the adverse effects of what the respondents have done or not done also to have to try and apportion liability among the respondents.”

He notes these interim orders, which focus on stabilising the site, may be followed with permanent enforcement orders to remedy the situation.

Given the scale of the waste at the property it’s unlikely the companies will be able provide a stocktake of what’s there, or ensure it’s stored safely by March 20.

If the Whangārei District Council takes over the site, the interim enforcement order gives it the right to sell anything salvaged while complying with the clean up order and recover any remaining debt from the companies.

“It is unfortunate, to say the least, that a business that knows the requirements it must work under, works outside the law and then fails to remedy the consequences of their actions, potentially leaving other innocent taxpayers and ratepayers to suffer the degradation of the environment, the physical risk and the clean-up costs,” Whangārei District Council chief executive Rob Forlong said.

Newsroom reported last month a distillation unit with a description matching that of the unit from the site was advertised for sale on Trade Me by a seller named ‘smiffy27’. It had an asking price of $200,000 with finance or a joint venture also on offer. 

The Trade Me listing was removed the same day as Newsroom’s story was published. 

Smith, who has previously said he hasn’t been on the property for months, now seems to be involved in a septic tank cleaning business in Ruakaka. 

In a discussion with ex-mayoral candidate Alex Wright, Sustainable Solvent’s Brian Smith told her he’s been unable to sell the property because Solvent Services abandoned 500,000 litres of solvent on it:

“Make no mistake, I have quite a lot of stuff on site too, but I have the equity for it to be cleaned up.”

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