Ex-senior watchdog staffer says NSW asbestos crisis ‘destined to happen’ after decade of regulatory failure

Jason Scarborough is a former EPA investigator who wrote a paper in 2013 that warned widespread breaches by industry meant potentially contaminated product might have been applied to land across NSW. Photograph: Jessica Hromas/The Guardian

A former senior NSW environment watchdog officer says the state’s widening asbestos contamination crisis was “destined to happen” after the regulator failed to act on problems in the waste recovery sector uncovered more than a decade ago.

Jason Scarborough was a senior waste compliance officer at the NSW Environment Protection Authority (EPA) from 2009 t0 2018. He now runs his own consultancy providing advice on regulatory matters.

“The primary reason I’ve decided to speak out is concern for the community,” he said.

“It’s one of those situations, and I’ve had a few of them in my career, where you just want to grab all of the parties concerned and clunk their heads together and say surely you could have figured this out before now.”

Scarborough, in an exclusive interview with Guardian Australia, said:

“Both the regulator and industry were fully aware of these issues” in waste recovery for more than 10 years

The EPA abandoned much-needed reforms in 2022 for one type of recycled soil product without explanation other than saying “we’ve heard what industry had to say”

The regulator must now focus on “protecting the community’s health” over “saving a dollar”.

In 2013, while at the EPA, Scarborough wrote a report summarising findings his team made after investigating facilities producing a type of soil fill known as “recovered fines”. This type of soil fill is made from the processing of construction and demolition waste, including skip bin residue, after all large recyclable material has been removed.

That report concluded there was an “industry-wide deficiency” in complying with rules meant to limit the spread of contaminants such as lead and asbestos into the community. It also detected poor practices including repeated retesting of samples to obtain a result that complied with contaminant limits.

A follow-up investigation in 2019, which Scarborough was not involved in, reached similar conclusions and also found 57% of facilities had asbestos in their recovered fines.

Soil fill made from construction and demolition waste can be used in NSW for construction projects and landscaping.

Scarborough’s 2013 report, and other later analyses by EPA officials, recommended a series of reforms to tighten regulations for recovered fines. But the proposals were abandoned by the watchdog in 2022 in favour of an education and monitoring campaign after pushback from industry.

The industry warned the proposed changes would force up the cost of landfill disposal, drive more waste into rubbish dumps and force skip bin companies out of business.

Scarborough said he had been watching the unfolding asbestos-contaminated mulch crisis – which has closed parks, schools and other sites across Sydney – with “a feeling of inevitability because this was something that was destined to happen”.

“I’m loathing the missed opportunity back in 2013 to deal decisively with those issues,” he said.

Scarborough said he was worried about the damage the crisis would do to the government’s broader goals of resource recovery and achieving circular economy targets.

“I’m surprised the issue reared its head in mulch first, I thought it would be recovered fines because of the observations we made in the 2013 investigation, and there has been little to no change since,” he said.

“The very nature of the material is high-risk because it contains contaminants such as lead, other heavy metals and potentially asbestos.”

The asbestos-contaminated mulch that has been identified across Sydney is a different type of recycled product from recovered fines and covered by a separate set of regulations. Greenlife Resource Recovery, which produced the mulch at the centre of the biggest environmental investigation in the EPA’s history, has said it is confident mulch leaving its facility was free from asbestos and it was not responsible for the contamination.

The EPA says the use of recycled products is regulated under the Protection of the Environment Operations (Waste) Regulation 2014.

“There are very different requirements for mulch and recovered fines, which are not the same material,” a spokesperson told Guardian Australia.

“Under the mulch order and exemption, mulch should be clean, free from contamination such as plastics, glass and generated from timber offcuts, forestry materials and logs.

“Recovered fines are residues from construction and demolition activities, and different rules apply.”

There are no specific requirements that suppliers test mulch for contaminants, Guardian Australia reported last week. There are also no specific steps the supplier must take to ensure mulch contains no asbestos.

Scarborough said recycled mulch products and soil fill products made from processed construction waste were captured by the same legal framework for waste recovery.

Within this system, common problem areas had been identified, including in quality control, testing standards and traceability of the final product, he said.

“There’s a regulatory failure there but the industry shares a lot of the blame as well for being very shortsighted.”

Scarborough said when the 2013 investigation into producers of recovered fines was launched, officials were acting on concerns raised with the regulator about the quality of the material being produced and whether testing requirements were being adhered to.

The report recommended soil fill products made from skip bin residue only be used as cover material at rubbish dumps. It also recommended that the regulations be amended to explicitly prohibit recovered fines from being sold to landscapers and landscape material suppliers.

Scarborough said this was because officials working on the investigation formed the view that landscaping companies “weren’t equipped” to manage the risks associated with the material. He said the fill was often sold under generic names such as “turf underlay” or “cheap fill” – and once potentially contaminated product entered the supply chain it was difficult to track.

Inspections of facilities for the 2013 investigation found only about 50% of facilities producing the product were keeping records of who they had supplied it to, he said. When there were records, they often didn’t contain all of the necessary details.

“For example, there would be a record just with a registration number for a trailer or a truck,” he said.

Scarborough said given the extensive body of evidence gathered by “objective, science-based and risk-focused” EPA officials in the 2013 and 2019 investigations, he “was at a loss to explain” why various proposed reforms were not acted on.

“They were going down a pathway [of reform] that made sense but then suddenly to do a complete about-face with essentially zero explanation other than ‘we’ve heard what industry had to say about it’ – it’s unusual.

“It’s not in keeping with the culture of the organisation I was once part of. I [used to] say let’s go and look at what it says on the front door of the building – environment protection – that’s our job.”

The EPA’s spokesperson said the organisation had made changes to the regulation of the construction and demolition sector since 2013 “to improve the quality of the industry and reduce the risk of asbestos”.

They include changes that introduced requirements for closer inspections of waste upon its arrival at waste facilities.

The spokesperson said changes were also made to strengthen existing prohibitions on the recycling, reuse and unlawful disposal of asbestos waste, including by increasing maximum penalties.

Scarborough said the EPA’s responsibility was ultimately to the community and the environment first – not the profitability of industry.

“I think the focus needs to be drawn back to risk and fitness for use,” he said.

“Yes, there are cost implications involved in making changes. But what’s more important: saving a dollar or protecting the community’s health?”

Do you know more? Email [email protected]