Recycler Exide Technologies has confirmed it is filing proceedings to sue Commerce Minister Simon Power over lead battery shipments.
In a statement, Exide's Australasian managing director John Cowpe said Power was being sued in his capacity as the decision maker for permits to export used lead batteries.
Exide said the Government's failure to stop shipments was a contravention of New Zealand's international obligations under the Basel and Waigani treaties - which are supposed to stop rich nations from dumping their toxic waste on poor nations.
"The Government has international obligations incorporated into New Zealand law to favour New Zealand facilities where used lead acid batteries could be disposed of or recycled in an environmentally sound and efficient manner, and to limit the international transport of hazardous waste. We believe the government has failed to meet these legal obligations in exercising its discretion to grant export permits," said John Cowpe, Exide's Australasian Managing Director.
The Exide Smelter in Petone is the only battery recycling facility in New Zealand.
Cowpe said the plant met all of its obligations to be environmentally compliant and efficient. It had applied for a new resource consent and had voluntarily offered to lower the emission thresholds as part of that application.
"We have invested millions of dollars into our Petone smelter to ensure we are environmentally sound. However, we do not have any batteries to recycle because the government has granted permits to export nearly 100,000 tonnes to developing countries like the Philippines and to Korea since 1 January 2008. There remain four outstanding applications for another 17,800 tonnes of used lead acid batteries [ULABs]. That is all of the ULABs in New Zealand and more".
The law says the Minister "must give effect to" the Basel and Waigani Conventions, and "ensure that the exportation of waste is otherwise in conformity" with New Zealand's obligations under these conventions.
"Exide does not want to create a monopoly for recycling used lead acid batteries. We also do not want the Government to ban export permits for the batteries. We just want the Government to meet its international and domestic legal obligations," Cowpe said.
Exide's lawyers are meeting with the Ministry of Economic Development today to discuss the litigation and will be filing proceedings with the High Court midweek.
The move comes as sources close to Exide suggest the plant has enough batteries to stay open for just four days this week. It may have to close on August 15, costing about 40 jobs, depending on the legal action, unless a new supply of used batteries is found.
The Green lobby is supporting Exide's call for the Government to stop further exports, saying they threaten New Zealand's image as a clean green country and a responsible member of the international community.
Greenpeace executive director Bunny McDiarmid said New Zealand had a moral responsibility to deal with its own toxic waste, not dump it on developing countries.
But McDiarmid admitted Exide had a chequered history itself on environmental issues. Environment Minister Nick Smith told Parliament its record was "not acceptable".
"It's not a case of going into bat for Exide, it's more about wanting to ensure we are minimising any trans-boundary movement of hazardous waste," Ms McDiarmid said.
Documents released under the Official Information Act show about 94,000 tonnes of used lead acid batteries have been exported to Korea and the Philippines in the past three years.
McDiarmid said she would be "very surprised" if facilities in the Philippines met higher environmental standards than Exide's.
Countries such as Australia stopped exporting toxic battery waste to the Philippines after they signed up to the Basel and Waigani conventions, which aim to limit the movement of toxic and highly hazardous waste beyond national borders. New Zealand is also a signatory but the Government argues that banning lead acid battery shipments would give Exide a monopoly.
Smith – who will meet Exide bosses this week – has launched a review of shipping policy but said he would have to be satisfied that Exide was running "a world's best-practice recycling facility at Petone" if the policy were to change.
Exide wanted a monopoly and that would mean higher prices for consumers, he said.
Exide says it has spent $7 million upgrading its facilities to meet more-stringent environmental standards. It has also offered to blood-test residents in support of its latest application for resource consent.
The action against Power is likely to allege there were illegalities in the way applications for permits to export used lead acid batteries were dealt with, and procedural unfairness.
BATTERY PLANT 'IMPRESSIVE'
A battery recycling plant in the Philippines described by a Ministry of Economic and Development official as "impressive" has been the subject of Greenpeace investigations and allegations of severe lead contamination.
A 1996 report by Greenpeace said locals suffered from nausea, burning eyes, sore throats and respiratory ailments, and after a follow-up investigation in 2003 the organisation said it was "shocked" to find mountains of lead waste "stockpiled openly and without any form of secure containment".
In 2008, a ministry official visited the plant and described seeing untreated slag stored in heaps covered with tarpaulins.
The official's report noted that treated waste water was discharged into a nearby river but said lead levels were below the maximum allowable and that plastic battery cases that could not be recycled were sent to landfills and may contain some lead residue, albeit at low levels.
"On the whole I was impressed with the facility."
Several shipments of used lead acid batteries have arrived
Recycler's Record Less Than Pristine Recent - Petone plant history
The Exide battery plant in Petone has had a long history of environmental concerns.
The plant is owned by Exide Technologies, a United States conglomerate based in Delaware, which claims to be one of the world's largest producers and recyclers of lead-acid batteries.
The company, founded in 1888, has subsidiaries in more than 80 countries and reported net sales of NZ$3.5 billion in the latest financial year.
The Petone recycling plant is one of nine Exide plants and the only one outside the US and Europe. There are six in America, two in Spain and one in Portugal.
The Petone plant is not the only one where there have been environmental concerns. Earlier this year, the company reached an agreement with the council of Frisco, Texas, to spend $20 million reducing plant emissions by 90 per cent.
November 2005: Plant forced to start stockpiling waste after Hutt City Council stopped accepting slag at Wainuiomata landfill, where residents complained it caused a terrible smell.
June 2007: Exide gets approval to start dumping a backlog of waste at Silverstream landfill so it can start disposing of thousands of tonnes of slag stored in Seaview warehouses.
November 2007: Exide fined $5000 for emitting more than the permitted level of lead-laced dust into the air.
June 2008: Exide fined $30,000 and warned of further consequences if it continues breaching lead discharge limits designed to protect Petone residents.
May 2009: An explosion shattered windows, hurling glass on to the footpath after molten slag made contact with water. Slag contains lead, tin, antimony, arsenic, calcium and selenium.
February 2010: Plant receives international accreditation for its environmental management.
November 2010: Electrical fire at plant.
July 2011: Exide applies for a resource consent allowing it to continue operating the plant for another 15 years, saying it has spent $7m to ensure it is environmentally sound. It also offered blood tests to residents.
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