The New South Wales environment watchdog warned the former Coalition state government that a widely used recycled landscaping product posed “potential unacceptable risks to the environment and the community”.
Guardian Australia revealed in January that the Environment Protection Authority had known for more than a decade that producers of soil fill made from construction and demolition waste – known as recovered fines – were failing to comply with rules to limit the spread of contaminants.
Now documents obtained by Guardian Australia under freedom of information laws show that senior ministers Matt Kean and Mark Speakman were told of the risk to the public in 2021.
At the time the EPA was proposing to tighten regulation of the products but in May 2022 it walked away from the reforms after opposition from the waste industry.
As an independent body, the EPA sets environmental regulations but the environment minister has the power to make general directions to the authority if it is considered in the public interest.
There is no suggestion Kean or Speakman was involved in the decision not to change the regulations, and Kean was no longer the minister when that decision was made.
‘Should not be used broadly in the community’
Hundreds of thousands of tonnes of recovered fines are produced by waste facilities in NSW every year for use in construction projects, in public spaces such as parks, and in home landscaping.
The advice from the EPA about recovered fines appears in a December 2021 letter signed by Kean, then the environment minister, to Speakman, then the attorney general.
According to the documents, Speakman raised the EPA’s plan to crack down on facilities that produced the products with Kean’s office after Speakman was contacted by a skip bin company in his Cronulla electorate about the proposal.
Kean sought advice from the EPA. The EPA sent Kean and his office a three-page brief summarising the issues and drafted the letter in reply to Speakman based on that advice, which Kean signed.
The letter said: “Following an industry wide campaign, the EPA found widespread non-compliances with the current rules, and potential unacceptable risks to the environment and the community associated with the use of recovered fines which did not meet the EPA’s strict quality criteria.”
In the EPA’s brief to Kean, the regulator provided more detailed background, saying inspections of waste facilities as part of an investigation in 2019 had found “recovered fines produced by facilities were not fit for purpose and pose a risk to the community and the environment”.
The EPA told Kean that in addition to poor industry compliance with regulations, it found the products were of poor quality and contained significant amounts of microplastics, chemically treated timbers, synthetic mineral fibres and some asbestos.
“From just one facility, it can supply up to 35 billion pieces of microplastics to the environment and community,” the brief said.
According to the brief, the EPA acknowledged the reforms it was proposing could have financial impacts for industry “but as an environmental regulator it must consider protection of the environment and communities”.
“This material should not be reused broadly in the community,” the brief said.
It said the soil products could instead be used as an alternative cover at rubbish tips, with a 75% waste levy discount.
Changes abandoned
The changes to the regulations proposed by the EPA at the time would have meant that the material could not be applied to land as a soil or sand substitute or for landscaping purposes unless a facility demonstrated its product was of high quality.
In an earlier brief to Kean in August 2021, the regulator said: “The skip bin industry is likely to lobby against this decision as it will have cost implications as recovered fines will need to be disposed of at landfills.”
The regulator ultimately abandoned the proposal to change the regulations after opposition from the industry, which said it would force up the cost of landfill disposal, drive more waste into landfill and force skip bin companies out of business.
The NSW Greens environment spokesperson, Sue Higginson, this week said: “What these documents show is that the most senior members of the Coalition government in 2021 knew that the advice from the EPA was that recovered fines should not be reused broadly in the community – but did nothing about it.”
Speakman, now the NSW Liberal leader, said: “Ms Higginson appears to be unaware (or alternatively chooses to ignore) that a standard practice, and indeed a duty, of a local MP is to make representations to ministers on behalf of constituents, whether or not the MP agrees with them.”
He said he had passed Kean’s letter to the skip bin company.
“The ministerial reply highlighted certain risks but also indicated that the [EPA] was actively reviewing the appropriate management strategies for these risks. The minister appeared to be thoroughly informed about the situation.”
It was not until last week that the EPA’s chief executive, Tony Chappel, announced significant changes to the regulations were again under consideration. This followed a fresh compliance blitz by the regulator and a 15-month investigation by Guardian Australia.
A NSW EPA spokesperson said: “The EPA listened to feedback [in 2022] and heard the concerns of the waste and resource recovery industry and small businesses.
“To improve the quality of recovered fines, the EPA focused on education and monitoring to raise awareness and improve compliance.”
They said most of the industry submissions the regulator received through public consultation at the time focused on the potential business and economic impacts.
The spokesperson said: “The EPA will consult widely in considering upcoming reforms to the recovered fines resource recovery order.”
Kean did not respond to a request for comment.
