This weekend, Community Environment Monitoring member Wendy Bacon published an opinion piece about the Guardian Australia investigative series: The Dirt Files.
The best way to follow the issue is to read the key articles and the opinion piece. What follows is some more background and discussion.
It’s important to understand that the Guardian’s recent investigation is not about the pieces of bonded asbestos found in parks and schools in both NSW and Victoria earlier in the year. This investigation is about something called Recovered Fines.
What are recovered fines?
‘Recovered fines’ are produced from the material found at the bottom of skip bins. About 700,000 tons of it is produced each year in NSW alone. The NSW Environmental Protection Authority does not trace its end use but the EPA does know recovered fines end up under road surfaces but also in local parks, sporting fields, suburban gardens or even childcare centres. It is sold in major retail gardening stores as a cheaper and inadequately labelled form of soil fill.
The asbestos found in recovered fines is more likely to be in the form of fibres, which are more risky to human health than bonded asbestos such as that found at the Rozelle Interchange and other Sydney Parks and schools.
The first of Guardian Australia’s stories about recovered fines was published on January 29, this year. It revealed that the NSW EPA has known for more than a decade that producers of soil fill made from construction and demolition waste were failing to comply with rules designed to limit the spread of contaminants such as lead and asbestos into the community.
The Guardian journalists’ investigation has been produced with the assistance of Jason Scarborough who previously worked for the NSW EPA as a compliance officer, and questions asked in Budget Estimates by Greens MP and environmental lawyer Sue Higginson.
As a strong example of public interest journalism, the series deserve maximum exposure and community discussion but unfortunately other media including Nine media have ignored the recovered fines issue. ABC Radio has done several interviews with the reporters Lisa Cox and Catie McLeod including this one (at about 15 mins in) but for some reason, ABC news has ignored the issue.
The Guardian investigative team even purchased their own soil fill and tested four batches. The results were alarming. Two of four samples did not comply with state regulations on pH levels and one was found to contain asbestos fibres. One of the products that passed the laboratory tests contained large physical contaminants including glass and a metal screw. Scarborough, who took the samples sent for testing, told the Guardian the “product containing asbestos posed a potential health hazard, another would be “unsuitable for any sort of horticultural use” and he also would not use the product that had “serious visible physical contamination”.
What did the EPA say about recovered fines in April 2022?
Two NSW EPA investigations, one in 2013 and one in 2019, found facilities producing recovered fines were breaching regulations intended to limit the spread of contaminants, including lead and asbestos.
This is what the NSW EPA said in April 2022:
“Recovered fines are the material collected at the bottom of waste skip bins, and can contain contaminants like asbestos, which pose potential health risks. The recovered fines are currently sold by skip bin operators and used in landscaping products, sporting fields and residential developments.
Our testing found that over half of the facilities producing recovered fines were producing material that contained asbestos, micro plastics and other contaminants.”
This statement is still on the NSW EPA website. As you would expect, the EPA planned to take action to achieve safer regulation. However the big peak lobby groups of the waste industry pushed back and their reform plans were abandoned. Instead, the LNP government pushed the issue down the track politically by asking for a NSW Chief Scientist’s report. This report is being produced in secret. The issue stopped getting any publicity.
What action has the Minister for Environment Penny Sharpe taken?
Earlier in the year when bonded asbestos pieces were found in many parks, schools and elsewhere around Sydney, the NSW Minister for Environment Penny Sharpe declared it was a case of ‘regulatory failure’. The government responded to a sense of urgency with the creation of an EPA taskforce. We note that five months later, no prosecutions have been launched in relation to the bonded asbestos finds. Not all sites have yet been remediated.
As most of the media moved on, that political pressure waned. The NSW government’s reaction to the recovered fines revelations has been much more low key.
When the Guardian reported that products of recovered fines bought recently were contaminated, the Minister said she was “very concerned” but has taken no other action.
Rather than taking action in response to the Guardian’s publication of up-to-date evidence of contaminated material bought in retail gardening stores , Sharpe merely pushed the matter into the future by saying that she would weight for the Chief Scientist’s report on recovered fines that was delayed last year due to another inquiry into fish kills in rivers. (This would suggest that the Chief Scientist, like the EPA, is also under resourced.) The Chief Scientist’s report is being produced in secret and will itself be subject to industry pressures. The Minister said she will make ‘necessary changes’ when she receives the report. Her tone is is markedly different than when the media pack was on the case earlier in the year.
The Chief Scientist also has a limited brief and will not be able to investigate evidence that the laboratory system of testing is not operating effectively. Last week, the Guardian reported that clients of commercial companies including big waste companies are able to retest if they get positive samples. Independent scientists were quoted calling for reform in the field of testing. This issue has been raised in the context of problems with regulating recovered fines but also has broader implications for testing and environmental regulation generally. So far the government appears to be ignoring that issue.
Tougher penalties are welcome but are they enough?
The NSW government introduced amendments to the Protection of the Environment Operations Act that included tougher penalties for asbestos contamination. The amendments also clarified and strengthened the EPA’s powers to investigate and recall products. The amendments came into operation in April 2024.
But one of the problems is that the EPA only ever prosecutes as a last resort and maximum penalties are rarely given to guilty parties. Corporate charity including partnerships that could be regarded as greenwashing are used as character evidence to reduce penalties. So far, it is not clear whether these new powers will be rigorously applied or if big industry players will continue to be able to get away with non-compliance. Also, the EPA needs more resources to be able to do its job effectively.
Penalties must be high enough to be meaningful for big corporate players. Bingo Industries, for example, is owned by Macquarie Infrastructure which is is one of the biggest asset managers around the world. Even the new
Tougher penalties are welcome but they are not enough, especially if industry can apply pressure to get policies changed.
Minister can issue order for EPA to treat harmful substances in consumer products as a priority issue
The Greens Environmental spokesperson Sue Higginson who was previously head of the Environmental Defenders’ Office said last week:
“The true size of this issue has become apparent, it’s enormous and it requires a serious and urgent response from the Government.”
“The EPA is either unable or unwilling to regulate recycled landscaping products. This must be resolved through further regulatory change or a direction by the Minister that harmful substances in consumer products be considered a priority issue and prevented from entering the environment,”
“The products that are under the spotlight in NSW are not tracked, and their distribution is both poorly understood and impossible to trace. This is a huge issue for the environment and communities, especially because of the large quantities of product that are involved.”
“It is so important that we have a waste recycling system and we move to a circular waste economy as quickly as possible, but it must have integrity and be safe.”
“The Opposition in NSW have made it clear that they support tighter controls on these recycled materials, what more is the Government waiting for to stop this flow of asbestos and other contaminants into back yards and public and sensitive spaces?”
Further questions
Why won’t the Minister issue an order that the EPA must treat the issue of harmful products in consumer products as a priority issue?
How will Minister Sharpe and the NSW EPA act to reassure the public that the commercial system of lab testing is not being gamed by big clients?
Why does the EPA continue to allow products that they know could be contaminated be sold to the general public?
Who, how and by whom was the decision made in 2022 to cave into industry pressure and reneg on the plan to reform to the regulation of recovered fines? Who advised that an emphasis on ‘education’ would suffice? What following up studies or compliance audits were done in 2023 to see that compliance had improved since 2019?