The New South Wales premier, Chris Minns, says he is open to exploring changes to the laws and regulations governing the recycling of construction waste into landscaping products after widespread compliance issues were revealed by Guardian Australia.
Minns met with the state’s environmental watchdog on Monday after the Guardian revealed the NSW Environment Protection Authority (EPA) has known for more than a decade that producers of a type of soil fill derived 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.
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.
The soil fill can be applied to land for construction and landscaping purposes.
Minns said it was the EPA’s duty to investigate possible breaches that could lead to toxic substances being released into the community.
“I need to be satisfied that the rules that are in place are sufficiently robust enough for them to conduct these inquiries and investigations,” he said.
The premier said he would look at legal and regulatory changes if they were recommended.
“If there’s law changes, or potential regulatory changes that we need to explore, then we’ll look at it closely,” he told the ABC on Monday.
But the Guardian understands any changes would be looked at after the EPA has completed its investigation into bonded asbestos found in the mulch at parklands in Rozelle and other government infrastructure projects throughout Sydney this month.
Minns said that while the situation was “not good enough”, recycling construction waste products was “done with the best of intentions”.
“We’ve got to make sure we can get it right and other cities and states and jurisdictions do it better than us, but I don’t want to throw the baby out with the bathwater,” he said.
Internal EPA documents show an investigation by the regulator in 2013 found 94% of industry had not complied with at least one aspect of the regulations for recovered fines.
A follow-up investigation in 2019 found 71% of facilities 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. The EPA also found that 57% of facilities had asbestos in their recovered fines.
The regulator considered tougher regulations, warning in one document released to Guardian Australia that a business-as-usual approach would mean there was a risk that up to 658,000 tonnes of “non-compliant material” could be applied to “sensitive land” including residential sites, childcare facilities, schools and parks.
But it abandoned a proposal to tighten the regulations in 2022 after pushback from industry and negative media coverage.
The industry warned the proposed changes could push up the cost of landfill disposal, drive more waste into landfill and force skip bin companies out of business.
The Waste Management and Resource Recovery Association told Guardian Australia recovered fines were often used as a base for roads and other construction projects, meaning they were capped with other materials reducing the risk of contact with people.
NSW Greens environment spokesperson, Sue Higginson, said it was “gut-wrenching” that childcare centres and other high-risk areas may have been exposed to contaminants.
“The EPA has known that these contaminated products have been returning to the environment and communities for years, but political failure and a lack of resources has meant that they couldn’t intervene,” she said.
“The EPA needs to be fully resourced to address this statewide issue and the government must ensure that there is a suitable regulatory environment to stop asbestos and lead-contaminated products from being sold as clean soil.”
Jeff Angel, who is the director of the Total Environment Centre, said there was a “perennial conflict” within the regulator about whether landfill diversion or stringent contamination standards should take precedence.
He said this had led to policy confusion and “likely ongoing pollution”, adding that the government needed to find a resolution.
“While recycling of construction and demolition waste in safely buried situations and in new, embodied construction material should continue, its role in soil and landscaping, should be banned,” he said.
“This includes in situations such as parks, pedestrian areas and areas where over time, erosion can cause release of dangerous pollutants.
“Community and environmental safety is paramount and we must reduce the amount of asbestos, microplastics and toxic chemicals in the environment.”
The construction industry generates more than 12m tonnes of waste annually in NSW, which makes up more than half of all waste generated in the state.
Mike Ritchie, the managing director of the MRA Consulting Group, an environmental consultancy with expertise in waste and resource recovery, said the EPA had to walk “a fine line between environmental protection and blowing out the amount of construction waste to landfill”.
“No one would disagree with the intention to protect the environment from pollution,” Ritchie said.
“But going too far will see clean useful material being sent to landfill because the costs of complying with the EPA rules means it may be just too expensive to try to recycle safe materials as well.”
Do you know more? Email lisa.cox@theguardian.com
