The landscaping materials company at the centre of the New South Wales asbestos crisis will point to the risks of contamination outside its facilities and the “unjustified impact” on its business when it argues to have an order preventing it making mulch products quashed.
Greenlife Resource Recovery and the NSW Environment Protection Authority appeared before the state’s land and environment court for a directions hearing on Friday, where they agreed to attempt conciliation at a meeting later this month.
It comes as the Victorian Environment Protection Authority confirmed to Guardian Australia it had begun random inspections of mulch producers in the state.
In documents lodged with the court, Greenlife’s parent company, VE Resource Recovery, asked the court to throw out the NSW EPA order so it could keep making and selling mulch.
The EPA notice was issued after asbestos was discovered in mulch made by Greenlife at the Rozelle parklands in January.
The EPA then launched a broader investigation which has led to the discovery of 75 additional sites across greater Sydney, most of which has been linked to the Bringelly based business.
In its statement of facts and contentions lodged with the court, the company argued that there was no way a court “could be satisfied that the alleged pollution and pollution incident referred to in the prevention notice was caused by the applicant”.
It also said the order from the EPA to stop manufacturing mulch products was adversely affecting its bottom line.
“The prohibition on the production of mulch is having an unreasonable and unjustified impact on the applicant business having regard to the level of risk to the environment and human health,” the document states.
It argues that the prevention notice had not specified “any concern with respect to the manner in which mulch is produced at the premises”.
It also rejects the claim from the EPA that Greenlife’s mulch was the “common denominator” at the sites where asbestos was found.
“The respondent [the EPA] conducted no comprehensive audit of other construction sites receiving mulch or recycled materials and the respondent had limited its investigation to the supply chain flowing from the applicant,” the document states.
“As a matter of logic that the applicant was the ‘common dominator’ in the supply chain simply reflects it was the starting point [of] the supply chain and does not have any bearing on whether it was the cause of contamination as against the other parties.”
Greenlife also laid out other points in the supply chain when the mulch could have become contaminated, including during transport.
“From the moment the mulch products leave the premises there is a risk of contamination of the mulch from other sources,” the document states.
Greenlife has repeatedly insisted it was not responsible for the contamination and that multiple rounds of testing by independent laboratories showed their mulch was free from asbestos before it was distributed to customers.
In an estimates hearing on Thursday, EPA officials were pressed for detail about the materials found in the mulch and whether the watchdog was testing for contaminants other than asbestos, such as heavy metals.
The EPA’s executive director of regulatory practice and services, Stephen Beaman, said the investigation was focused on asbestos and “foreign materials” which were physical contaminants such as treated timber, plastic, nails and wire.
Beaman said he had to be careful answering questions about the nature of the materials “because it’s part of the investigation and that forms a pretty critical piece of our evidence at the moment”.
“But what I can say is, there’s a strong correlation to where we identify pieces of bonded fibro in the mulch, you’ll also see levels of foreign material also in the mulch.”
Guardian Australia revealed last month that multiple samples of asbestos-contaminated mulch were found to contain “construction and demolition waste” and “foreign materials”, in contravention of state rules.
Beaman told Thursday’s hearing 1,197 samples of mulch had been tested. Asbestos had been detected in about 14% of the samples, a figure he said had remained fairly constant since the largest investigation in the EPA’s history commenced in January.
“It’s a very big dataset now … the level of that asbestos contamination, although unacceptable, has been low,” he said.
At the directions hearing on Friday, lawyers for Greenlife and the EPA agreed to meet with their clients onsite at the Bringelly waste facility to attempt conciliation on 28 March.
Land and environment court registrar Sarah Froh acknowledged the “enormous amount of public interest in this matter”.
She ordered the EPA to produce a trove of documents being sought by Greenlife on a rolling basis by the end of next week.
The EPA’s barrister, Henry El-Hage SC, told the court the agency would not “rest on our laurels” but Greenlife was seeking a “plethora of materials” that amounted to “hundreds of documents … thousands of pages”.
These included documents obtained during the course of the EPA investigation including those recording the supplier of mulch as anyone other than Greenlife and those identifying potential alternative sources of asbestos contamination at various sites.
El-Hage said Greenlife was requesting some documents that the EPA considered beyond what was relevant but he did not detail what these were.
Last month, the EPA said it was “following up on a possible second supplier” that may have provided asbestos-contaminated mulch to at least two sites where the substance has been detected.
Victoria’s EPA confirmed it was conducting random inspections of mulch producers in the state.
A spokesperson said it had taken “additional steps to prevent asbestos contamination of mulch” after reports the asbestos contamination crisis had spread to Queensland.
“We are carrying out a targeted program of spot inspections to ensure Victorian mulch producers have effective systems in place to prevent contamination from occurring,” the EPA Victoria spokesperson said.
“While we place strict conditions on industry and conduct regular inspections, we take the potential risk of asbestos contamination very seriously.”
Last month the Queensland government confirmed it had detected friable asbestos in a soil stockpile at company NuGrow’s Ipswich site, west of Brisbane.
NuGrow is not linked to Greenlife Resource Recovery, the company at the centre of the crisis in NSW.
