A testing regime meant to stop toxic chemicals going into landscaping products in New South Wales has been gamed by suppliers who kept retesting samples until they passed.
Waste facilities making soil fill from construction and demolition waste – called “recovered fines” – are required to test their product for hazardous contaminants and report results to the Environment Protection Authority (EPA) if they exceed legislated thresholds.
But a 2019 investigation by the environment watchdog – obtained exclusively by Guardian Australia – found almost half of the manufacturers instead asked the laboratories to simply retest the samples until they achieved an acceptable result. On one occasion a sample was tested six times in total.
Guardian Australia can reveal:
43% of facilities were requesting retesting and were only doing so after they received a result that breached state regulations.
Waste facilities were sending in samples for testing that looked very different to material EPA officials collected from their stockpiles, a separate 2013 report shows.
One testing laboratory alleged it was asked by manufacturers “not to report the presence of suspected asbestos”.
The revelations will create further headaches for the Minns government which is already dealing with a snowballing crisis related to asbestos-contaminated mulch – which is covered by a separate set of regulations.
Parks and schools have been closed while areas of hospitals and supermarkets have been fenced off. The scandal has led to the largest probe ever by the EPA with 130 staff working on the criminal investigation.
Internal EPA documents obtained by Guardian Australia show the retesting of recovered fines samples had the effect of making it look as though products sold to consumers complied with state regulations, when they did not.
In one presentation, the EPA wrote the practice of retesting created “type 1 errors in decision making – concluding the waste is compliant when in fact it is not”.
Ian Wright, an environmental scientist and associate professor at Western Sydney University who has studied toxins in products such as recycled concrete, said retesting was “a real worry”.
“That’s as logical as a doctor or pathologist retesting for a life-threatening illness, getting bad news five times and then on test six you get a different result and that’s the result you share with the patient,” he told Guardian Australia of the self-regulatory system. “How is that appropriate?”
Recovered fines are 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.
Waste facilities in NSW produce about 700,000 tonnes of recovered fines each year that are sold as fill for projects including landscaping, sporting fields and residential developments. The product is not allowed to be used on agricultural land or around water infrastructure.
In one example uncovered by the 2019 EPA investigation, a facility asked a lab to retest a sample an additional five times for lead. Only the sixth and final test returned a favourable result of 68mg/kg – under the EPA’s absolute maximum concentration limit of 250mg/kg.
The five other results ranged from 2,850mg/kg to 5,610mg/kg – between 10 and 20 times the limit. The facility discounted the first five measurements and used the sixth as evidence it had “passed”.
The watchdog’s investigation found 43% of facilities were requesting retesting after breaches that included exceeding absolute maximum concentration limits for different types of contaminants and maximum average concentration limits.
Requests were also made after asbestos was detected. Under the laws, facilities are not required to test for asbestos and the EPA investigation found only 29% were doing so.
Guardian Australia revealed in late January that the EPA had known about concerns regarding recovered fines products for more than a decade, after two investigations found widespread breaches of regulations meant to limit the spread of contaminants such as lead and asbestos.
The regulator walked away from a plan to tighten regulations after pushback from industry, despite noting there was a risk that up to 658,000 tonnes of “non-compliant material” could be used in the community each year, including on “sensitive land” such as residential sites, childcare facilities, schools and parks.
Documents show the EPA was also aware retesting was occurring more than a decade ago when a 2013 investigation of the industry detected the practice.
EPA investigators wrote in that report it “was apparent that reanalysis was the method of choice to deal with non-compliant sample results”.
The 2013 investigation uncovered other concerning practices including “significant inconsistencies” – both visual and analytical – between samples some facilities provided to laboratories for testing and samples EPA officials collected purportedly from the same stockpiles.
Side-by-side photos in the report show the visual differences, with the samples some facilities sent to laboratories appearing to contain more clean soil than the recovered fines EPA officials collected on site.
The report states that given the short timeframe between the facilities’ own sampling and the EPA sampling, the inconsistencies were best explained by: “Consultants not competently sampling materials; non-representative sampling by facility operators; laboratories not competently handling/analysing received samples; and/or deliberate misrepresentation by facilities and/or laboratories of recovered fines produced.”
The EPA officials who worked on the 2013 investigation also reported that one laboratory said staff “often find suspected asbestos-containing material in samples of recovered fines submitted for analysis”.
“According to the laboratory representative, they have been advised by the sample submitters not to report the presence of suspected asbestos-containing material as it is not a specific requirement in the [regulations],” the report stated.
“This situation is a perverse interpretation … as any waste containing asbestos is, by definition, asbestos waste. This is also an interpretation that can potentially put end users of recovered fines at unnecessary risks.”
The report recommended soil fill made from skip bin materials only be used as cover material at rubbish dumps. It recommended regulations be amended to explicitly prohibit recovered fines from being sold to landscapers and landscape material suppliers. The recommendations weren’t adopted.
According to the EPA’s 2019 study, 57% of facilities had asbestos in their recovered fines.
The NSW Greens environment spokesperson, Sue Higginson, said the practices uncovered in the 2013 and 2019 investigations were “evidence of regulatory failure”.
“The buck starts and stops with the EPA,” she said.
An EPA spokesperson said when the authority became aware that labs were finding asbestos in recovered fine samples but were asked not to report it by clients “we reinforced their obligations to always report asbestos presence in samples when detected”.
“We also advised that any laboratory that does not report the known presence of asbestos may have supplied false or misleading information,” the spokesperson said on Friday, adding penalties of up to $1m could apply.
“If the EPA receives a report that information being provided in lab reports or waste classification reports is false and misleading, the EPA investigates these allegations and has prosecuted these types of incidents in the past.”
The authority said that since 2013 it had “undertaken a series of reforms to the regulation of the construction and demolition sector to improve the quality of the industry”.
The EPA’s executive director of regulatory practice and services, Stephen Beaman, said “retesting is not best practice and we want to stamp it out”.
“Retesting [is] only acceptable if there is an actual laboratory or analytical error that would mean the test result was not reliable and needed to be repeated,” he told Guardian Australia.
“To reduce this practice, the EPA provided industry with best practice sampling and reporting information and resources to improve staff training.”
Beaman said the EPA was conducting site inspections and sampling to assess the compliance of facilities that produce recovered fines. The results of that enforcement campaign are expected by the end of March 2024.
The campaign is not examining historical sampling data or looking at retesting.
The management of asbestos in recovered fines remains under review by the state’s chief scientist whose report is expected later this year.
Do you know more? Email lisa.cox@theguardian.com
