“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 it 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…
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…
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, Palmer said.
‘Similarly, a property owner affected adversely through contamination of a water bore or river source for water could claim against the Crown for harm caused in the last six years.’
But the property owner would have to prove the contamination was caused by the Defence Force’s use of the foam, Palmer said.”
Read the full article by Jennifer Eder