Contamination crackdown – EPA issue warning to local councils

By Julian Hammond, Caroline Sakinofsky and Benjamin Wilson

The Environmental Protection Authority (EPA) has announced it will be writing to Victorian local councils requesting that they review their quality controls in relation to contaminated mulch found at several parks across Melbourne’s north and west. The topic has national scope, with bonded asbestos recently found in more than 75 sites around Australia, including parks and schools in New South Wales.

The EPA has found asbestos contaminated materials within mulch delivered to the locations by third party providers. As the EPA has made clear in media statements, under the Environmental Protection Act 2017 (Vic) (EP Act), ultimately, councils in management and control of land will be ‘liable for the quality of mulch that gets laid‘.[1]

Recovery of costs for remediating contamination under the EP Act

Notably in this context, in Victoria, section 274(6) of the EP Act permits a person in management or control of land who is served with an Environmental Action Notice (EAN) to recover any reasonable costs incurred in complying with the EAN, against any person responsible for causing or contributing to contamination.[2]

The courts have ultimate discretion to determine what constitutes reasonable costs in complying with an EAN. However, in making a claim under section 274(6) of the EP Act, the person in management or control of the land is obliged to substantiate any claimable costs, including costs associated with the testing, removal and disposal of contaminated soil, and the legal fees relating to the action for remediation recovery.[3]

Responding to the EPA

In anticipation of contact from the EPA, councils should begin collating and reviewing detailed records of:

• contracts with suppliers, including any specific warranties and indemnities included;
• suppliers and their contact details;
• dates and details of locations of supply; and
• any correspondence in relation to the supply, particularly as to quality of the material.

Councils should review their arrangements with suppliers to understand the nature of the material being utilised in landscaping and to ensure that it is properly documented.

Where material is known to be recycled industrial waste material, the Act has a statutory process, namely the Declaration of Use tool under regulation 64 of the Environment Protection Regulations 2021, which provides a means of authorising the place of receipt as being a “lawful place” that is ‘authorised to receive’ the waste. This tool is specifically envisaged to be used for recycled landscaping materials under reg 64(1)(b).