Tauranga dairy effluent discharge prosecution sentencing delayed

The discoloured Waimapu Stream after dairy effluent discharge from an Oropi farm. Photo / Supplied

An Ōropi, farm dairy farm contractor and his company have been convicted for illegally discharging dairy effluent into a waterway. Sandra Conchie reports

A former Tauranga dairy farm contractor and his company are awaiting sentencing after illegally discharging effluent from an Ōropi farm which ended up in nearby stream.

David Justin Kehely and his company DJK Ltd have pleaded guilty to one charge each of discharging a contaminant on to or into land in circumstances where it may enter a watercourse, namely the Waimapu Stream.

The defendants admitted the charges in the Environment Court at Tauranga yesterday. and Judge Melanie Harland convicted the pair.

The charge Keheley admitted attracts a maximum penalty of a $300,000 fine or a prison term of two years, while the maximum penalty for a company is $600,000 fine.

The Bay of Plenty Regional Council prosecution relates to dairy effluent from a McPhail Rd farm in Oropi which ended up in the Waimapu Stream between January 7 and January 10, 2018.

At the time of the offending, the farm's trustees employed Keheley and his partner as contract milkers.

David Keheley was responsible for the day-to-day running of the farm and he also employed other staff on the farm through his company DJK Ltd.

The discharges were drawn to the attention of the council by member of the public.

On the evening of January 7, 2018, the complainant and her family members went to have a barbecue at a swimming hole in the upper part of the Waimapu Stream.

On arrival, the complainants found the stream was heavily discoloured and smelt "very strongly" of effluent, the court heard.

A family member followed the discolouration upstream and saw dairy effluent flowing from a drain on the farm into the stream and rang the council's pollution hotline.

The stream was still discoloured when a council officer visited three days later.

He then inspected the cowshed and found the effluent levels in the storage pond were "very high" and a large amount of dried effluent was in a paddock beside the cowshed.

The dairy effluent flow path from the stormwater diverter on an Oropi farm. Photo / Supplied

Effluent had also flowed from the diverter to a farm drain which flowed into the stream about 300 metres from the diverter, the court heard.

Laboratory samples revealed extremely high levels of faecal coliforms and E.coli were present at the point of discharge into the stream.

A regional council inspector taking water samples on January 10, 2018. Photo / Supplied

It is not known exactly when or what caused the discharge on January 7, 2018.

Waimapu Stream discharges into Tauranga Harbour about 20km from the farm, and it is a regionally significant trout habitat and fishery valued waterway for indigenous species.

Since 2012, the regional council has worked with landowners to improve the water quality through jointly funded various initiatives.

During a farm inspection on January 18, 2018, Keheley told the inspector several remedial steps had been taken.

This included more hosing installed to enable more effective washdowns of the yards and to prevent effluent from getting to the diverter.

More protocols had also been put in place to make the diversion system more "foolproof".

Diverters were now used for rain events with flags and chains going up to prevent access to the cowshed pit and more training was taking place for the farm's three staff.

The council's lawyer Victoria Brewer sought a fine of $70,000 before any credit was given for guilty pleas, mitigating factors and attending a restorative justice meeting.

Brewer said in terms of what had gone wrong, not ensuring that the diverter was closed, showed a "high degree of carelessness".

"The Waimapu Stream had suffered a significant contamination discharge... this offending was certainly well above the levels set for both stock drinking and recreational bathers."

Brewer said clearly there had been no fail-safe measures in place to prevent these types discharges until the council's inspector visited the farm.

The defendants' lawyer Phillip Lang argued a fine of around $50,000 was more appropriate before discounts were allowed for guilty pleas, remorse and personal factors.

Lang said while it was accepted there had been effluent discharges at some point between January 7 and 10, 2018, but the duration of the offending was "unknown".

He also submitted the background to how the offending happened and the extent of the environmental impacts was subject to some conjecture.

"It certainly cannot be characterised as an ongoing discharge," Lang said.

Significant credit should be given to attending a restorative justice meeting with the complainants, and also for his previous good record, he said.

Lang said his client and the defendant company were no longer engaged in the dairy industry and Keheley had relocated to Northland and started a new business.

Judge Melanie Harland reserved her decision and sought further information about the financial positions of both defendants.