Ex-senior watchdog staffer says NSW asbestos crisis âdestined to happenâ after decade of regulatory failure | New South Wales
A former senior NSW environment watchdog officer says the stateâs widening asbestos contamination crisis was âdestined to happenâ after the regulator failed to act on problems in the waste recovery sector uncovered more than a decade ago.
Jason Scarborough was a senior waste compliance officer at the NSW Environment Protection Authority (EPA) from 2009 t0 2018. He now runs his own consultancy providing advice on regulatory matters.
âThe primary reason Iâve decided to speak out is concern for the community,â he said.
âItâs one of those situations, and Iâve had a few of them in my career, where you just want to grab all of the parties concerned and clunk their heads together and say surely you could have figured this out before now.â
Scarborough, in an exclusive interview with Guardian Australia, said:
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âBoth the regulator and industry were fully aware of these issuesâ in waste recovery for more than 10 years
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The EPA abandoned much-needed reforms in 2022 for one type of recycled soil product without explanation other than saying âweâve heard what industry had to sayâ
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The regulator must now focus on âprotecting the communityâs healthâ over âsaving a dollarâ.
In 2013, while at the EPA, Scarborough wrote a report summarising findings his team made after investigating facilities producing a type of soil fill known as ârecovered finesâ. This type of soil fill is made from the processing of construction and demolition waste, including skip bin residue, after all large recyclable material has been removed.
That report concluded there was an âindustry-wide deficiencyâ in complying with rules meant to limit the spread of contaminants such as lead and asbestos into the community. It also detected poor practices including repeated retesting of samples to obtain a result that complied with contaminant limits.
A follow-up investigation in 2019, which Scarborough was not involved in, reached similar conclusions and also found 57% of facilities had asbestos in their recovered fines.
Soil fill made from construction and demolition waste can be used in NSW for construction projects and landscaping.
Scarboroughâs 2013 report, and other later analyses by EPA officials, recommended a series of reforms to tighten regulations for recovered fines. But the proposals were abandoned by the watchdog in 2022 in favour of an education and monitoring campaign after pushback from industry.
The industry warned the proposed changes would force up the cost of landfill disposal, drive more waste into rubbish dumps and force skip bin companies out of business.
Scarborough said he had been watching the unfolding asbestos-contaminated mulch crisis â which has closed parks, schools and other sites across Sydney â with âa feeling of inevitability because this was something that was destined to happenâ.
âIâm loathing the missed opportunity back in 2013 to deal decisively with those issues,â he said.
Scarborough said he was worried about the damage the crisis would do to the governmentâs broader goals of resource recovery and achieving circular economy targets.
âIâm surprised the issue reared its head in mulch first, I thought it would be recovered fines because of the observations we made in the 2013 investigation, and there has been little to no change since,â he said.
âThe very nature of the material is high-risk because it contains contaminants such as lead, other heavy metals and potentially asbestos.â
The asbestos-contaminated mulch that has been identified across Sydney is a different type of recycled product from recovered fines and covered by a separate set of regulations. Greenlife Resource Recovery, which produced the mulch at the centre of the biggest environmental investigation in the EPAâs history, has said it is confident mulch leaving its facility was free from asbestos and it was not responsible for the contamination.
The EPA says the use of recycled products is regulated under the Protection of the Environment Operations (Waste) Regulation 2014.
âThere are very different requirements for mulch and recovered fines, which are not the same material,â a spokesperson told Guardian Australia.
âUnder the mulch order and exemption, mulch should be clean, free from contamination such as plastics, glass and generated from timber offcuts, forestry materials and logs.
âRecovered fines are residues from construction and demolition activities, and different rules apply.â
There are no specific requirements that suppliers test mulch for contaminants, Guardian Australia reported last week. There are also no specific steps the supplier must take to ensure mulch contains no asbestos.
Scarborough said recycled mulch products and soil fill products made from processed construction waste were captured by the same legal framework for waste recovery.
Within this system, common problem areas had been identified, including in quality control, testing standards and traceability of the final product, he said.
âThereâs a regulatory failure there but the industry shares a lot of the blame as well for being very shortsighted.â
Scarborough said when the 2013 investigation into producers of recovered fines was launched, officials were acting on concerns raised with the regulator about the quality of the material being produced and whether testing requirements were being adhered to.
The report recommended soil fill products made from skip bin residue only be used as cover material at rubbish dumps. It also recommended that the regulations be amended to explicitly prohibit recovered fines from being sold to landscapers and landscape material suppliers.
Scarborough said this was because officials working on the investigation formed the view that landscaping companies âwerenât equippedâ to manage the risks associated with the material. He said the fill was often sold under generic names such as âturf underlayâ or âcheap fillâ â and once potentially contaminated product entered the supply chain it was difficult to track.
Inspections of facilities for the 2013 investigation found only about 50% of facilities producing the product were keeping records of who they had supplied it to, he said. When there were records, they often didnât contain all of the necessary details.
âFor example, there would be a record just with a registration number for a trailer or a truck,â he said.
Scarborough said given the extensive body of evidence gathered by âobjective, science-based and risk-focusedâ EPA officials in the 2013 and 2019 investigations, he âwas at a loss to explainâ why various proposed reforms were not acted on.
âThey were going down a pathway [of reform] that made sense but then suddenly to do a complete about-face with essentially zero explanation other than âweâve heard what industry had to say about itâ â itâs unusual.
âItâs not in keeping with the culture of the organisation I was once part of. I [used to] say letâs go and look at what it says on the front door of the building â environment protection â thatâs our job.â
The EPAâs spokesperson said the organisation had made changes to the regulation of the construction and demolition sector since 2013 âto improve the quality of the industry and reduce the risk of asbestosâ.
They include changes that introduced requirements for closer inspections of waste upon its arrival at waste facilities.
The spokesperson said changes were also made to strengthen existing prohibitions on the recycling, reuse and unlawful disposal of asbestos waste, including by increasing maximum penalties.
Scarborough said the EPAâs responsibility was ultimately to the community and the environment first â not the profitability of industry.
âI think the focus needs to be drawn back to risk and fitness for use,â he said.
âYes, there are cost implications involved in making changes. But whatâs more important: saving a dollar or protecting the communityâs health?â
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