A man who became ill after working for the Auckland Council in a contaminated area disputes the council’s claim it did all it could to address his concerns.
Hamilton man Ralph Morgan says his employer, Auckland Council, should have taken more precautions because it knew about the problem but did not tell him.
The council defended its actions, while ACC rejected Morgan’s case.
However, an accident compensation lawyer said the system was stacked against victims of environmental toxicology and needed overhauling.
A criminologist said Morgan’s struggle for six years showed how hard it was for “environmental victims” to prove their case without much help, up against multiple agencies, each with their own corner to defend in a system that diffused accountability.
Morgan spoke up when the record of contamination investigations done by authorities at the harbour bridge – but not shared with the public – came to light two months ago.
Dozens of documents obtained by RNZ showed maintenance work and operations on the bridge contaminated land next to houses with heavy metals above permitted levels
He told RNZ he had shovelled up a half-a-skipbin full of dust at a disused compound under the bridge next to Westhaven Marina, where he worked as a dockmaster, on March 6, 2014.
This is an area that the Transport Agency in an internal report in 2012, labelled a “contaminant hotspot”.
Morgan was not wearing any protective gear.
His medical records show he has been badly ill ever since with heart, respiratory and neurological “multiple system involvement” that doctors are still looking into.
“My insides are mush,” Morgan said.
“This has changed my life.”
His wife Jane said she’s watched him decline “from the day he came home that day”.
Tests were ordered by Auckland Council in May 2014 on dust Morgan said he collected at the site.
These showed “higher than normal levels of chromium, lead, nickel and zinc”, the council said.
“But none were at a level that would cause health issues.”
RNZ has asked the council to back up that claim.
A single page of the test results by Hill Laboratories, provided by the Morgans, showed the metals present at below permitted levels for soil, except for zinc at 4500 parts per million or 10 times the threshold, a virtual match for zinc levels at the bridge’s north endVery high zinc uptake in humans can damage the brain and body development.
When Morgan came to it in 2014, the council had already known for three years of the problem: tests from 2010 to 2012 had showed elevated heavy metal levels in soil at both ends of the bridge.
The Transport Agency found out first.
Its investigations suggested this came in part from year-round maintenance work on the bridge.
The authorities did not tell local residents at Stokes Pt or the public about this, because consultants judged the health risks were low or inconclusive.
On average 7.5 tonnes of abrasive-blasting residue was discharged at the bridge annually from 2015 to 2019 by painters, though the zinc component of that has been radically cut back since 2014.
A 2011 internal Transport Agency report said the air discharge consent was one of eight that had been breached for the previous decade.
The council said in a statement that it had been keen to support Morgan at the time and took “every reasonable step” to address his concerns.
A short time later, it asked if RNZ could help to pinpoint when exactly the “alleged incident” happened. RNZ has asked for logs of the incident.
The PSA union said the council did not tell it or Morgan about the earlier discovery of contaminants.
Morgan said he just wanted workers to be kept safe – and acknowledged it was partly his own fault for not wearing protective gear.
“But because my employers hadn’t said that there was anything at risk in that area … I just carried on done [sic] what I was asked to do,” the 59-year-old told RNZ in his broad Scottish accent.
“If my employer would-a says, ‘Look, there’s a possibility that Ralph’s been exposed to this stuff, like, let’s get him checked … let’s do what we can do to help, like’, it would have been totally different, especially if they knew that stuff was there.”
The Morgans are in no doubt the dust came from the bridge maintenance work, and is to blame for his wide range of debilitating conditions. But they cannot prove it.
An area within 50m of the bridge on the eastern side by Westhaven Drive was identified in a 2012 Transport Agency report as a “contaminant hotspot” with elevated levels of lead, copper and zinc; this is the area in which Morgan said he shovelled the dust.
Victoria University criminology lecturer Dr Sarah Monod de Froideville said the case demonstrated a common dilemma under slack environmental protection laws in this country and elsewhere.
“It becomes very difficult to actually lay the blame on any one party … there’s a whole bunch of different things at both ends that are working against somebody like Ralph,” Monod de Froideville said.
“If we reinterpreted environmental harm as a crime, then there’d be a hell of a lot less of it.”
Monod de Froideville had interviewed 41 victims of the poisoning of Havelock North’s water in 2016, when four people died.
In that case negligence was proved, but accountability was so diffused, it did not stick, she said.
“The literature calls it ‘organised irresponsibility’. It’s embedded in the way that we regulate.”
Some Havelock North people wanted compensation, many wanted acknowledgement – but agencies were leery in case liability accompanied that, Monod de Froideville said.
ACC accepts one claim, rejects another
Morgan is a heavy smoker. He conceded that had complicated the diagnoses.
However, his medical records make seven references to conditions such as toxic myopathy and toxic encephalopathy, “post exposure to a combination of heavy metals and dust on 06-03-2014”.
The council was supportive to a point, but then left him to it, Morgan said.
The council said its agency Waterfront Auckland (now Panuku) engaged with Morgan for two years but did not get all the information it asked for.
“As a responsible employer, we take health and safety concerns from our staff very seriously and were keen to ensure Mr Morgan was well supported, and also to ensure that no other employees were exposed to any potential risk,” the council’s head of employee relations Andre Lubbe said in a statement.
ACC accepted a claim by Morgan for acute pneumonitis – inflammatory lung condition – in March 2014, but not the heavy metal poisoning claim.
The Morgans claim it took a long time to get the right blood tests, too long to show up the heavy metals.
ACC first referred him to a nearby occupational doctor, then to another doctor of his choice, which ACC funded, the corporation’s chief clinical officer Dr John Robson said in a statement.
“That occupational physician, and the neurologist his GP referred him to, both said there was no evidence of heavy metal poisoning.
“Their reports were reviewed by an independent panel of toxicology experts who agreed with their conclusions.”
However, ACC lawyer Hazel Armstrong said the panel was not truly independent.
It was set up by ACC and had a track record of not considering toxic exposure claims in full other than for asbestos, plus people were left in the dark about what steps they could take, Armstrong said.
“If you’ve got a complex, gradual process-condition from environmental exposures, such as lead, or zinc, or whatever … it’s quite a hard hurdle for a person on their own.”
A review in 2016 found it was difficult and costly for claimants to get representation and medical expert opinion to dispute an ACC decision.
Calls for environmental crime to be given more weight
Armstrong called on the government to reinstate the Gradual Process and Occupational Disease Panel that she chaired.
It was set up in 2007 to assess cases just like Morgan’s, but dismantled by then ACC Minister Nick Smith in 2010.
Monod de Froideville said the system would continue to fail victims till it gave them their due, including not dismissing their recall of what had happened to them as merely anecdotal – “It’s like, ‘Oh, that’s what you say’,” she said.
Instead, the increased weight the courts now put on victim impact statements in crimes against persons or property, should apply to environmental crime, she said.
The country needed another safety organisation – “civil safe”, she suggested – “where organisations like councils and even the national government are actually held to account through this independent entity for things like drinking water, like roading, like works.”
An independent science body that could assess toxic exposure claims would also help, as opposed to the current situation where often the consultants were working for either the polluter, or a regulator that might fear it was in the gun, she said.
Morgan wants it sorted.
“I would like to think that I’m doing everything in my power to keep other people safe,” he said.
“And if there’s a problem … things happen, let’ sort it out … so people can remain safe when they go to their work.”
At the Harbour Bridge, the Transport Agency has changed tack on paint-stripping, with improvements starting in 2011, cutting zinc discharges from 1.4 tonnes a year up to 2013, to just 22 kilograms last year.
It was painted where it was needed now, instead of routine repainting.
“This approach has allowed for a significant reduction in the amount of painting required, and as a result a significant reduction of discharge of paint, zinc and garnet to the coast,” the agency said in a statement.
Monitoring showed discharges were well within annual threshold levels of 14.7 tonnes a year of garnet, and 223 kilos of zinc.
The records show little containment of grit and dust over the water – and zinc is harmful to marine life.
However, when paint took place over land, containment was used, the agency said.
Auckland Council said the report of Morgan’s experience was “highly inaccurate and therefore inflammatory”.
“No firm evidence” was presented to support his claim, it said.
“All of the information we have provided you to date made it very clear that the slightly elevated levels of contamination did not pose a human health risk,” the council said.
“There was no human health risk from contaminants found in soil.”
The council rejected a link between contamination found by NZTA and its own investigations at the north end of the bridge at a public reserve at Stokes Pt / Te Onewa Pa in 2010 and 2011, and similar contamination found by NZTA at the south end in 2012.
It was not accurate to “suggest” there were no masks available to workers at Westhaven Marina.
“All workers were provided with the opportunity to wear masks for dust sweeping if they wanted to wear them.”