Watchdog failed to act on contamination risk despite ‘damning’ asbestos findings | New South Wales

The New South Wales environmental regulator has known for more than a decade that producers of soil fill made from construction and demolition waste were failing to comply with rules to limit the spread of contaminants such as lead and asbestos into the community.

Internal documents from the Environment Protection Authority (EPA), obtained by Guardian Australia, warned widespread breaches by industry meant potentially contaminated product might have been applied to land across the state, including at childcare centres, residential areas, schools and parks.

But the regulator walked away from a proposal to tighten regulations in 2022 after it received pushback from the waste industry warning the policy changes would force up the cost of landfill disposal, drive more waste into landfill and force skip bin companies out of business.

Soil fill could contain asbestos fibres

The potentially contaminated product, known as “recovered fines”, is a soil or sand substitute made from the processing of construction and demolition waste, including skip bin residue, after all large recyclable material has been removed.

It is a different product from the contaminated mulch recently found in Rozelle parklands. But experts say that unlike the bonded asbestos found in Rozelle, which is relatively harmless unless broken apart, recovered fines could contain asbestos fibres, which pose a greater risk to human health.

“Fibrous asbestos poses risk [because] inhalation can take it into your lungs and the fibres then get stuck in the lungs. It doesn’t go away,” said Prof Ravi Naidu, an internationally recognised expert in soil pollution from the University of Newcastle.

Waste facilities in NSW produce about 700,000 tonnes of recovered fines each year for application on land including landscaping, sporting fields and residential developments, according to the EPA. The product is not allowed to be used on agricultural land or around water infrastructure.

“The community will be rightly outraged that the profitability of industry appears to have been put above community safety by the EPA,” said NSW Greens MP Kobi Shetty, whose seat of Balmain takes in the Rozelle parklands where bonded asbestos was discovered in mulch.

“If you look at the evidence, it’s pretty compelling that there’s a large problem.”

Widespread breaches

Documents released through government information public access laws as part of a Guardian Australia investigation show two enforcement investigations by the regulator – one in 2013 and one in 2019 – found widespread breaches by waste facilities of regulations that require producers of recovered fines to make sure their product is safe for reuse in the community.

Under NSW resource recovery regulations, producers of the processed waste must ensure their product does not exceed limits on contaminants such as lead, cadmium, plastics and glass.

There is no requirement they test specifically for asbestos.

The detailed results of the EPA’s investigations have not been released previously and include a finding in 2013 that 94% of industry had not complied with at least one aspect of the regulations.

In a follow-up investigation in 2019 the EPA reviewed about 50,000 pieces of testing and sampling data from 21 waste facilities and found 71% had exceeded the absolute maximum concentration limit for a chemical or physical contaminant at least once over a two-year period, with the most frequent breaches identified for metals, glass and rigid plastics, pH levels and lead.

More than half of samples contained asbestos

The NSW regulations for recovered fines do not require facilities to test for asbestos and the 2019 review found only 29% of facilities had requested asbestos testing.

In a second stage of that investigation, the EPA took its own samples at 14 facilities. That round of testing, according to an EPA industry presentation, found 57% of facilities had asbestos in their recovered fines.

Some of the EPA’s findings from its 2019 investigation relating to poor industry compliance, including the asbestos contamination, were made public by the regulator in 2022 when it proposed a series of reforms.

The documents show that between 2013 and 2022, the EPA gave extensive consideration to tightening regulations based on the findings of its enforcement campaigns.

One preliminary analysis of potential options highlighted the potential risks of a business-as-usual approach by pointing to the 2013 finding that 94% of industry had not complied with at least one aspect of the regulations.

“This means that up to 658,000 tonnes (94% of 700,000 tonnes) of material produced annually may not have complied with the order,” the document states.

“This non-compliant material may be applied on sensitive land uses such as residential, child care facilities, schools and parks.”

Children at risk

A spokesperson for the EPA told Guardian Australia the human health and environmental risks associated with recovered fines were low because the products were “generally used in low-contact situations, such as engineering fill and pipe bedding”.

But Mark Taylor, an honorary professor at Macquarie University who specialises in environmental contamination, said “the ultimate end use of recovered soils and fines is unknown”.

He said the products “could end up being used in the most sensitive environments involving young children under the age of five”.

Small children have a lower body mass index and are more likely to put things in their mouth so pollutants pose a greater risk to their health, experts say.

“If you’re going to have unfettered use of these products, you need to have the most conservative standards applied to the materials in order to protect human health where the risk is greatest,” Taylor said.

“To not do so means the industry is complicit and wilfully contaminating the environment.”

Taylor acknowledged the recovery and processing of waste for new uses was a “herculean task”, but said the public needed to know that products were safe and fit for purpose.

“While it is critical that resources are reused and recycled wherever possible to assist in meeting sustainable outcomes, the community needs to be placed first to protect them from unnecessary risks of harm.”

Proposed changes

According to the documents obtained by Guardian Australia, the EPA considered a tough approach that involved revoking the existing regulations for recovered fines and introducing site-specific ones, which would have meant the material could not be applied to land as a soil or sand substitute or for landscaping purposes unless a facility demonstrated its recovered fines were high quality.

One of the risks of this approach, the regulator warned, was “about 350,000 tonnes of recovered fines may end up in landfill per year”.

Another option, later put to industry, was tougher “batch” regulations that would require facilities to receive the results from sampling and testing before products went out to third parties.

The EPA also considered introducing rules for asbestos testing and discussed limiting the application of soil fill products derived from recovered fines to construction works “at depth”, prohibiting their use in landscaping.

The management of asbestos in recovered fines remains under review by the state’s chief scientist.

The EPA put its proposal to industry in late 2021 that it intended to revoke the general orders and exemptions that allowed broad use of recovered fines on land in favour of new rules that would allow for their use where high-quality product could be demonstrated.

But this was abandoned in 2022 after significant industry objections and negative media coverage.

Pressure from industry

According to the NSW government, industry raised “significant concerns” with the proposed changes, including that they would be challenging to comply with and could impose significant costs that would be passed on to skip bin customers, as well as reduce recycling and recovery rates and increase illegal dumping.

One letter from multiple skip bin companies, released to Guardian Australia, said negative impacts would include a substantial increase in landfill fees, construction cost increases, flow-on effects for landscapers, small renovators and “everyday mums and dads”, and “most small rubbish removal and skip bin businesses will be forced to close leaving Bingo to monopolise the industry”.

In an email in May 2022, the EPA’s acting chief executive Jacqueleine Moore told stakeholders the regulator had “heard the concerns of the waste and resource recovery industry, small businesses, and the construction industry”.

“Following this consultation, the EPA will not move ahead with the proposed changes to the rules governing how recovered fines are managed and recycled,” the email said.

“The existing recovered fines orders and exemptions will remain in place. The EPA will instead focus on waste industry education, monitoring and compliance to improve environmental outcomes.”

A former employee of the EPA, who spoke to Guardian Australia on the condition of anonymity, said: “A lot of people within the EPA who worked on this policy were actually really angry that we backflipped.

“They felt really let down because they had done all of this work, there had been a lot of policy work, science work, that had been done over a long period of time and they had a lot of evidence.”

Shetty said the backdown was “a clear case of regulatory failure”. “I think the inaction from the EPA is damning. There’s clearly a problem here,” she said.

Part of a ‘circular economy’

The construction and demolition industry generates more than 12 million tonnes of waste annually in NSW, which makes up more than half of all waste generated in the state. Recovered fines account for approximately 3% of NSW’s annual waste, according to the EPA’s spokesperson, and about half of the estimated 700,000 tonnes generated each year “is clean, uncontaminated soil”.

In their feedback to the EPA the peak industry bodies the Waste Management and Resource Recovery (WMRR) Association and Waste Contractors & Recyclers Association said they were “categorically opposed” to the EPA’s proposal to revoke the regulations covering recovered fines “given the important role that it plays in ensuring construction material is circulated within the NSW economy and environment, and in doing so, reduces the reliance on virgin material while creating jobs and investment in NSW”.

They described the findings in the EPA’s 2019 investigation as “flawed” because they were made before construction facility guidelines were introduced that had improved facility practices and the “quality and consistency of this material”.

They said the impacts on people or the environment of foreign materials in recovered fines were “likely to be extremely limited given that these materials are already widely present in the environment”.

Gayle Sloan, the chief executive of WMRR, said recovered fines were often used as a base for roads and other construction projects and were capped by other materials. She said industry wanted the regulator to take an approach to contaminants that matched the products’ intended use.

“As an industry, we are 100% committed to making a safe product,” she said. “What we didn’t want was to put a valuable product into landfill.”

She said more needed to be done to correctly classify waste at its source to ensure only materials that could be safely recycled made their way to recycling facilities.

The EPA’s spokesperson said the regulator was “committed to protecting the environment and reducing risks to human health while driving a circular economy”.

“The use of good quality clean soil excavated from construction activities is a great example of a circular economy that reuses waste resources efficiently and productively.”

They said in October last year the regulator had commenced another “campaign to assess compliance with the resource recovery order, including site inspections and collecting samples for testing”.

The compliance campaign would be completed by the end of April this year and would “inform further regulatory action, and reform of the resource recovery framework” in line with recommendations from a 2021 independent review by Dr Cathy Wilkinson.

“Our work will be further guided later this year by a NSW Chief Scientist and Engineer report commissioned to provide advice on the management of asbestos in recovered fines, and CSIRO/EPA research currently underway on microplastics, chemically treated timbers and synthetic mineral fibres,” the spokesperson said.

These reports are expected later in 2024.