Icepak confirms it faces charges

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Icepak has confirmed it is among those charged yesterday in relation to the Tamahere coolstore explosion that killed senior station officer Derek Lovell and seriously injured seven other firefighters.

The Department of Labour laid the charges in the Hamilton District Court, but would not give details of the defendants.

But Paul Hemsley, a public relations consultant hired by Icepak Group, owner of the Tamahere coolstore which exploded on April 5, said charges had been laid against the company, reported the NZ Herald.

It was taking legal advice and could not comment further, Mr Hemsley said.

Charges have been laid under the Health and Safety in Employment Act 1992 and related regulations. The act sets out duties of employers regarding the safety of employees and others in and around the workplace.

The most serious charge – breaching the act knowing such a breach was likely to cause serious harm – carries a maximum penalty of a $500,000 fine and/or a year in jail.

The Hazardous Substances and New Organisms Act carries a maximum penalty of three months’ jail and/or a $500,000 fine for failure to comply with regulatory controls applying to hazardous substances.

The report noted that neither the Fire Service, the Waikato District Council (which is the land-use authority and rural fire authority) nor a Government agency which gave Icepak a grant to test the same propane gas at its Waharoa coolstores, knew Hychill-50, a flammable propanegas, had been used at the Tamahere plant since 2003.

The Energy Efficiency and Conservation Authority (EECA), which promotes sustainable energy, paid Icepak 85 per cent of a $60,800 grant to test propane at its Waharoa plant.

Chief executive Mike Underhill said it would have been helpful had EECA been told Icepak’s Tamahere site was already using the refrigerant, but it would not have changed the decision to award the grant.

After the disastrous explosion at Tamahere, Icepak switched its Waharoa plant to freon gas and the trial was put on hold.

The paper also reports that a Unitec building services specialist plans to give evidence to the coroner’s inquiry – the only independent investigation into the death of fireman Derek Lovell – about flaws in regulations he says set the scene for the fatal coolstore explosion.

“It’s an appallingly complex, dense and badly written set of rules,” says Gary Cruickshank, head of building services at Unitec New Zealand’s Applied Technology Institute. “These rules should be written in such a way that a layman could understand them. Instead … professionals working in the field can’t get to the bottom of them.

“I have coined the phrase that it’s death by legislation,” says Cruickshank. “The immediate cause was the explosion and the fire … the root cause is the confusion caused by the very badly put together legislation.”

ACT leader Rodney Hide, who after the incident called for a Ministerial Inquiry, again reiterated his call saying the issues are sufficiently serious and wide-ranging to warrant one.

“It’s too big a burden for a coronial official,” says Hide. “My concern is we have all these overlapping regulations and bodies that are supposed to be administering it and common sense has gone by the by.”

It’s “not a good idea” for the Labour Department to conduct such an inquiry, says Hide, “because they are part of the inquiry, to be honest”.

Cruickshank says confusion arose from a management to administrative system change when the Hazardous Goods and New Organisms Act (HSNO) 1996 took over from the Dangerous Goods Act.

Under the old regime territorial authorities had dangerous goods inspectors tasked with certifying sites with dangerous substances such as a large volume of propane.

“It worked reasonably well … whereas under the new Act, Erma (the Environmental Risk Management Authority) became an administrator not a manager and the difference is one is paper-based, you tick the boxes and they’re happy. With the administration system no one is managing it.”

The inspection part of the process has been privatised. Erma licenses inspectors but does not provide training, which is a potential flaw in dealing with HSNO regulations. Under the HSNO regime, the onus is on employers to ensure they take all practical steps to guarantee safety – but Cruickshank says the outcome is often confusion.

According to the Fire Service report, Icepak may have breached regulations requiring signs warning of the presence of dangerous substances, exceeding propane limits without prior approval of the Waikato District Council’s hazardous substances officer, and failing to get a location test certificate certifying the site’s safety.

Aside from loss of life and injury, millions of dollars were lost in the fire and law suits are likely. Fonterra, which owned the bulk of the product in the coolstores, reportedly lost $25 million, the multimillion Icepak site was destroyed and the Fire Service is looking to recover $2.2 million for the loss of two fire trucks and other equipment, possibly from the Waikato District Council, as the principal rural fire authority covering the Tamahere plant. The council has said it would seek a court ruling if pressed.

Those who lost goods or whose property was damaged may decide to sue, says associate Auckland University law professor Bill Hodge. “We might have more than one defendant because part of what lawyers do is look not only for the primary defendant but to see if there is some regulator who blew it, who didn’t catch something that was way out of the building code, the health and safety regs – meaning one government agency or another.”

ACC was a bar to litigation for personal injury in New Zealand other than for punitive damages, which the Supreme Court in June ruled could be pursued by Susan Couch, survivor of the 2001 Auckland RSA triple murder. Couch, who was severely injured by William Bell while he was on parole, is suing the Justice Ministry.

Deceased estates can’t sue but legal action can be filed for mental harm, which sits outside ACC. “It could be a bystander, a mate of the guy who died or his family,” says Hodge. “But the mental harm isn’t just grief, sadness, anger, it has to be a diagnostically discernable mental injury.” Examples include a man who witnessed his wife drown in a rafting accident and family of Cave Creek victims.

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