The New South Wales environment watchdog has vowed to crack down on the waste industry after new tests found asbestos at seven of 13 facilities producing or handling cheap landscaping products.
A 15-month Guardian Australia investigation revealed earlier this year that the Environment Protection Authority (EPA) had failed to act after compliance campaigns in 2013 and 2019 found potentially contaminated products had been distributed across the state – including at childcare centres, schools, residential areas and parks – thanks to widespread breaches by the industry.
The chief executive of the EPA, Tony Chappel, said the watchdog was now considering “significant changes” to the regulations that govern recovered fines – soil fill made from recycled construction and demolition waste.
The fill is used in place of virgin materials in construction projects and public spaces such as parks. It is also sold for home use by landscape and garden stores.
The EPA visited the 13 facilities to carry out new testing in late 2023 and early 2024. In addition to the asbestos found at seven sites, six had recovered fines that contained glass and chemicals above the legal limits and pH levels outside the allowed range.
Chappel said the industry had been given ample opportunity to improve “but it’s time to reassess the regulatory settings”.
“The levels of non-compliance we’re seeing are concerning and it’s frustrating to see these issues continue despite working with industry over many years,” he said in a statement.
The watchdog will now review the regulations and will consider changes to the testing and sampling regime, where soil products made from recovered fines can be used and how producers are required to manage stockpiles “to improve environmental outcomes across the industry”.
“Significant changes to the rules governing recovered fines are being considered by the NSW EPA,” Chappel said. “We’ll also work with industry to improve quality control at the source of material and tracking of that material as it moves through the supply chain.”
As a result of the latest tests, nine facilities were required to dispose of more than 600 tonnes of non-compliant recovered fines.
The EPA said two facilities had already supplied recovered fines from non-compliant stockpiles to customers and were required to organise an asbestos assessor to assess the risk for each customer.
The EPA did not name the seven facilities where it detected asbestos, but prevention notices published on the EPA register show that Rock & Dirt Recycling in South Windsor, operated by N Moit & Sons, and Gow Street Recycling in Padstow were among them.
The EPA also did not name the six facilities that it found had breached limits for glass, chemicals and other contaminants and pH levels.
Separately, fines totalling $45,000 were issued to three Sydney facilities – Rock & Dirt Recycling, Aussie Skips Recycling in Strathfield South and Canterbury-Bankstown council’s Kelso Waste, Storage and Transfer facility at Milperra – for alleged licence breaches on standards for managing construction waste, including failure to properly label stockpiles.
More fines were likely to come, the EPA said, without identifying which facilities might be affected.
A Canterbury-Bankstown council spokesperson said the council did not produce recovered fines at Kelso but a “stockpile of recycled soil supplied from an external company did show samples of excess glass and council has had the company take the materials back”.
Rock & Dirt Recycling, Gow Street Recycling and Aussie Skips Recycling did not respond to requests for comment.
‘I wasn’t crying wolf all those years ago’
The full results of the EPA’s 2013 and 2019 investigations, as well as internal calls from its own officials to crack down on the sector, remained secret until they were obtained by Guardian Australia last year under NSW government information public access laws.
In one internal document, the EPA estimated up to 658,000 tonnes of material that had not complied with state regulations could have been used in the community every year.
But the EPA walked away from a proposal to tighten regulations in 2022 after opposition from the waste industry.
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Among the revelations was a 2019 finding that 43% of facilities that produce recovered fines had gamed the testing regime – which was designed to limit toxic chemicals and physical contaminants such as glass and rigid metals in the landscaping products – by asking private laboratories to repeatedly test samples found to contain contamination until they achieved an acceptable result.
Waste facilities making recovered fines are required to test their product for hazardous contaminants, such as lead, and report results to the EPA if they exceed legislated thresholds. Retesting of recovered fines is not prohibited, but if any test shows a sample has exceeded a contaminant threshold, the product is considered non-compliant.
The facilities are not required to specifically test for asbestos, but the recycling and reuse of asbestos in any form is prohibited.
In May, Guardian Australia revealed that some of the biggest waste companies in the state – including Bingo Industries, Aussie Skips Recycling, Benedict Recycling and KLF Holdings – were among those named in state parliament as having broken testing and sampling rules or to have requested retesting in 2013 or 2019.
Jason Scarborough led the 2013 investigation which, among its recommendations, said use of the products should be restricted to deeper construction works and its use for landscaping should be prohibited. He welcomed the news the regulator was considering changes to the regulations and said it was “overdue”.
“I wasn’t crying wolf all those years ago,” he said. “I’m hopeful that this might actually create some positive change.”
He said breaches by the industry represented both a regulatory and a market failure. “If we are moving to a circular economy, consumers have to have confidence that the recycled materials they may be buying are safe and fit for purpose.”
In April, Guardian Australia bought four recovered fines products at Sydney landscape stores and had samples of each tested by two private laboratories.
Two 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.
The EPA has confirmed it is investigating the product found to contain asbestos and looking into the original source of the material.
The results prompted the EPA to express concern about the “poor product and levels of non-compliance we are seeing in the industry”.
Chappel said the regulator would also closely consider any findings of a review by the office of the NSW chief scientist into minute traces of asbestos in recovered products and whether they posed a risk to public health.
The findings are expected later this year.