Dangerous Ground

Council-operated landfills were the worst offenders:  eight local councils recorded six or more breaches of their licence conditions.  In total, the eight councils recorded more than 60 breaches.  The council-owned Regional Landfill Clayton South Joint Venture recorded 12 breaches, according to figures analysed by Monash University’s investigative journalism students[1].

Companies and councils that discharge waste to the air, land and water are required to abide by conditions imposed by the EPA.  The conditions specify the types of waste that can be released into the environment, prohibitions on contaminating land or water, not releasing offensive odours and so on.

A study of the discharge histories of 361 companies and councils found that 183 of them breached at least one condition.  The 183 non-compliers recorded 383 breaches of their licence conditions.

Companies and councils each year must submit an Annual Performance Statement that describes their compliance with the EPA conditions. It is likely that the actual number of breaches is significantly higher than 383 because waste discharge licence holders report back to the EPA under an ‘honour system’ in which they report on their own unauthorised waste discharge.

Overall, the licensees’ Annual Performance Statements show that about one in every six conditions imposed by the EPA is breached but there appears to be little enforcement action. There are no details of sanctions on the EPA website, even though the agency's compliance policy requires the information be publicly available.

Despite the high number of breaches, the EPA states it prosecuted only a handful of companies or councils that failed to meet their licence conditions. The agency launched just six prosecutions for licence violations in 2010-2011 and four prosecutions a year earlier, according to figures supplied by the EPA.

In 2011 the EPA adopted a new compliance policy which emphasised giving licences in breach “support to comply’’ through advice. This provided for a sequence of enforcement actions including warnings, infringement notices, enforcement orders, notices of contravention, suspension of licences and prosecution. The action taken depends on the severity of the offence and the frequency of breaches. The agency supplied total figures on the sanctions it imposed but was unable to break them down to the number of infringement notices, warnings or other notices specifically for discharge licence breaches.

In one case, EPA inspectors found that asbestos in open pits “was not covered or contained sufficiently to prevent the release of asbestos fibres to air’’ at a landfill in Bulla  that is only a few hundred metres from homes. Asbestos cement sheeting and piping were found in the waste.  The tip operator B.T.Q. Group Pty Ltd blamed a plant breakdown. The EPA did not prosecute. Instead, it issued a notice requiring the asbestos to be covered over and a waste plan developed for handling asbestos.

A second investigation by Monash University’s investigative journalism students found that a lack of coordination and cooperation between the EPA, WorkSafe and local governments relating to asbestos incidents was placing workers and the public at risk of exposure to fibres (see: Government agencies failed in responding to asbestos risk).

The Department of Primary Industries’ latest publicly-available Annual Performance Statement in November 2010 showed it complied with just 62 per cent of its eight licence conditions. The department’s performance report is now “pending reform’’ and has been removed from the EPA’s website.

Monash University students examined 329 Annual Performance Statements from 2010-11 and 32 that were only available for the previous year. This represented reporting for about 72 per cent of all the licences issued. The remaining statements were listed as “Not Available’’.

The EPA responded that it audited some sites as well as the information supplied in the Annual Performance Statements provided by licensed companies. However its approach “is not dissimilar to other regulators like the Australian Tax Office, who do not physically check each and every tax return for compliance with the tax laws,’’ according to the agency’s communications consultant Simon Frost.

Frost said that a licence reform program “has bought greater consistency and transparency to environmental regulation in Victoria. More than 95 per cent of licences are now available to view online and provide a standardised reporting system for  licensed sites''.

However the Monash University study found 28 per cent of the Annual Performance Statements – 142 out of a total of 503 licences issued - were recorded on the EPA’s site as ‘Not Available’.

Despite the EPA recently promoting itself as favouring greater transparency, the EPA website that lists the discharge performances is buried deeply within its homepage.

The Monash survey found that of the 361 companies and councils:

• 183  (50%) failed to comply with at least one licence condition.
• 126 companies (35%) only complied with 90% of their licence conditions.
• 46 companies (12%) only complied with 80% of their licence conditions.
• On average, the defaulting companies broke two licence conditions.

 The most common breaches were:

• discharge of waste to surface water (43 breaches);
• discharge of offensive odours  beyond a premise’s boundaries (30);
• contamination of land or groundwater (27);
• discharging contaminated waste into stormwater (26 breaches);
• discharging waste to air, land or groundwater contrary to licence conditions (26), and
• breaching conditions for the discharge of waste to the air contrary to licence (24)

The data was analysed as part of a project by the Monash University journalism students to update the Dangerous Ground website  which runs stories about contaminated land and scrutinises the performance of the EPA.

Organisations that recorded a low percentage of compliance with their licence conditions included:

Organisations that recorded the highest number of breaches of their licence conditions included:

The Annual Performance Statements (APS) of some of Victoria’s biggest companies were listed as “not available’’ on the EPA's relevant website. They include Alcoa, most of the big power generators such as Hazelwood, Yallourn and Loy Yang; Ford Motor Company; and oil refiners Esso, Shell, Mobil.

It seems odd to ‘Dangerous Ground’ that the biggest companies’ reports would be unavailable. EPA spokesperson Tanya O’Shea said some Annual Performance Statements were not available due to their licence being still in the process of being “reformed’’, otherwise the companies were being followed up to submit, in which case, they would most likely be subject to enforcement action.  EPA consultant Simon Frost said: “As some EPA reformed licences only became operational on July 1, 2011, their first Annual Performance Statement will be submitted at the conclusion of the 2011-12 financial year.’’

The landfill at 654-718 Clayton Rd, Clayton South

The worst offender in Victoria was the Regional Landfill Clayton South Joint Venture which failed to comply with 12 of its 23 licence conditions. The landfill is owned by five local councils: Boroondara, Stonnington, Glen Eira, Whitehorse, and Monash.

The landfill failed to meet licence conditions relating to:

-  the discharge of offensive odours,

-  the discharge of contaminated stormwater,

-  the release of landfill emissions,

-  the discharge of waste,

-  requirements not to contaminate groundwater or land,

-  implement an approved monitoring plan,

-  cover up each day’s waste with soil or other approved covers,

-  the discharge of leachate,

- rehabilitating landfills cells

- submitting an Annual Performance Statement by September 30 each year.

EPA bores along the perimeter of the landfill at Ryan’s Road, Clayton, showed  “high concentrations of methane’’ gas in tests conducted by the EPA, believed to have been in 2009.  Monitoring of methane gas in 2011 also detected “areas of the landfill surface that exceed the action levels’’ determined by the EPA.

In December, 2010, the EPA issued a minor works pollution abatement notice  on the City of Boroondara due to offensive odours that were linked to a leachate treatment pond at the landfill.   The move followed complaints from local residents.  In June, 2011, the EPA issued a Pollution Abatement Notice  against the landfill owners following 670 complaints from distressed residents since the start of 2011.  The EPA warned the council owners that failure to comply within 60 days to a long list of requirements could result in fines of up to $340,000. Continuing offences could lead to fines of about $170,000 a day.  No information has been released publicly about the outcome of these notices.

In February, 2012, the  EPA found that 77 of the 342 Clayton landfill locations surveyed exceeded 100 parts per million for methane gas. “During the survey very strong landfill gas odours were detected. Many significant emissions of landfill gas were noted from damaged extraction wells, open pipes emerging from the intermediate cap and leachate/gas wells which were inadequately sealed. In the northern landfill area, 75 % of the gas wells were “off, damaged or had no flow due to flooding of leachate or blockages’’.

The Regional Landfill organisation responded in some cases with only two to three words in its most recent  Annual Performance Statement  about the action it was taking to remedy its breaches:

EPA: Action taken or that will be taken to prevent recurrence of the non-compliance

Regional Landfill: more supervision

EPA southern metro manager Bronwyn Green said the Clayton landfill required almost $3 million to be invested to improve its performance.

Background

The EPA requires organisations that engage in industrial or commercial activities to be scheduled for waste discharges or emissions including noise, handling waste or substances that could endanger the environment or be a potential danger to the environment. These premises must have an EPA licence to cover the actual operation of the site and set discharge limits and waste acceptance conditions as needed.

The EPA has a number of sanctions it can take against companies and other organisations that breach their conditions or fail to lodge Annual Performance Statements. They range from warnings to injunctions, and suspension and revocation of licences. A review of the EPA by consultant Stan Krpan in February 2011, however found that “there have been no revocations arising from EPA enforcement.’’

With Matt Mitchell & Jenny Denton

EPA boss John Merritt responds to our findings; ABC Stateline interview

 Also see:  Video Report and Government agencies failed to respond to asbestos risk 

Zoe Taylor-Lynch reports

An EPA report produced after an inspection of a landfill in Bulla found that asbestos had not been covered sufficiently to prevent the release of fibres to the air

While the EPA put an action plan in place to ensure environmental impacts were resolved, an investigation by Monash University investigative journalism students found that neither WorkSafe or Hume City Council were brought in to assess the human health risks.

The Department of Human Services’s guidelines put the responsibilities on the EPA for dealing with environmental impacts, WorkSafe for assessing workers’ health and safety risks, and where the public may be at risk, local government is required to make an assessment.

The guidelines “strongly recommend’’ that the three agencies work together to ensure that “nothing is missed’’.

Health Department media spokesman Graeme Walker said councils had a duty under the Public Health and Wellbeing Act to remedy as far as is reasonably possible all “nuisances’’ within their municipal boundaries. “Any person, whether a council or not, who manages or controls a landfill is required to comply with the above requirements.’’

However, the Bulla incident highlights both a lack of co-operation and a lack of understanding of roles and responsibilities.

What is surprising is that the EPA’s response followed severe criticism of the organisation by the state’s Ombudsman for failing to recognise the risk to residents of methane gas escaping from a landfill near the Brookland Greens housing estate in Cranbourne. The Ombudsman identified a lack of cooperation between agencies: “it is inexcusable that at a time when the EPA and the City of Casey should have been working together for the greater good of the community and the co-ordination of the emergency response, they were unable to put aside their differences.  In my view, residents of the estate were placed at unnecessary risk by both the City of Casey and the EPA in failing to ensure that appropriate actions were taken in a timely manner to mitigate the risk of landfill gas escaping from the landfill into the estate.’’

Occupational health and safety director for the Victorian branch of the Australian Workers Union, Percy Pillai, said the discovery of asbestos at the Bulla landfill was not an isolated incident and that the EPA had a history of ignoring immediate health risks.

“Morally they have an obligation if workers are being exposed they should bring it to the attention of the other government agencies involved, but they don’t do that,’’ Mr Pillai said.

The EPA said the health risk assessment was a matter for WorkSafe or the Health Department. WorkSafe confirmed it had not been made aware of the Bulla incident. Hume City Council responded that as the Bulla tip was privately owned, the issue was outside its jurisdiction.

Asbestoswise CEO Wayne Bruton said that his community support group received many phone calls relating to similar issues where government agencies had deflected responsibility.

“It’s appalling, you shouldn’t have an open asbestos area in a built up area like Bulla because it’s a danger for the public,’’ Mr Bruton said. He said no-one wanted to take responsibility when problems arose.

In October, 2011, the EPA fined Swan Hill Rural City council almost $6000 for leaving asbestos and household waste uncovered for two days in a landfill. While EPA North West Regional Manager Tim Eaton acknowledged the “obvious environmental and health implications’’, it appears no-one contacted WorkSafe to assess the risk.

“This sort of behaviour can leave the landfill staff exposed to health risks from the uncovered asbestos, not to mention the effect of pungent odours from the tip on the local community,’’ Mr Eaton said.

Swan Hill Rural City Council would not confirm whether any public health risk assessment had been carried out at the site.

At both the Bulla and the Swan Hill incidents each of the agencies involved in assessing the health risks pointed to each other for responsibility.

Swan Hill Rural City Council declined to comment on its role in the incident.

Mr Bruton said: “If you’re in a residential area that is close to an asbestos dumping facility, and the council haven’t been informed or if they have and they haven’t acted upon it to enforce what restrictions they can then they are just as culpable.’’

The Health Department says that landfill sites would normally fall under the jurisdiction of the EPA for environmental requirements and WorkSafe for OH&S requirements.

Note: The Regional Landfill in Clayton also breached a condition relating to asbestos. Its Annual Performance Statements says a small amount of asbestos was taken from the transfer station to the landfill face. It assessed the environmental impact as ‘low’.

See also: Video Report and Widespread breaches of EPA waste discharge conditions: study