2 May 2013

In a recent judgment the Land & Environment Court determined what is the first case of a prosecution against an environmental consultant in New South Wales. We acted for the defendants.

On 14 October 2010 an environmental consultant (the Consultant) conducted a soil classification on a stockpile of soil located at a rural property in Oakville. The stockpile was assessed by the Consultant to be between 150 and 200 tonnes and to be free of asbestos. A subsequent report from another environmental consultant made similar findings.

The Consultant's site assessor assessed the stockpile to be homogeneous, natural looking soil without stain or odour. The Consultant's site assessor also found the stockpile to be free of debris and building waste but for two small fragments of fibre cement sheeting which he suspected of containing asbestos. The Consultant's site assessor told the Court he suspected the fragments may have contained asbestos but by virtue of their size and location on the stockpile, formed the view they were foreign to the stockpile. The two fragments were hen-picked from the stockpile, double bagged and disposed of in the Consultant's asbestos bin. The two fragments were later confirmed to contain asbestos. The Consultant's site assessor performed a subsequent inspection of the stockpile after removal of the fragments and no further foreign material was located. In reliance on the subsequent inspection the Consultant issued a soil classification report and an asbestos clearance certificate containing the following respective statements:

No visible fibro pieces were observed and this issue does not warrant any particular concern.²

This clearance certificate serves to confirm that no asbestos materials were observed or are currently present within the nominated stockpile of fill material located at the front of the property. Therefore, the nominated stockpiles within the proposed development area can be reused within the site. ³

Some days after the issue of the soil classification report and clearance certificate more fibre cement fragments suspected of containing asbestos were found within the stockpile and the Consultant was requested to attend and reinspect. The Consultant's site assessor attended on 25 October 2010. He told the Court he observed a stockpile that appeared to be materially different from the one he inspected on the previous occasion. His evidence in this regard which was largely accepted was that the stockpile material was no longer homogenous in colour and contained not only visible fragments of fibre cement sheeting, but also other building waste.

After his inspection of 25 October 2010, the Consultant's site assessor altered his findings and prepared a remediation plan. However as a result of the statements within the Consultant's original report and clearance certificate the Consultant, its site assessor and his manager were charged with two counts of providing a report containing a false or misleading statement . The penalties handed down by the Court were at the low end of the scale demonstrating how minor the infringement actually was in the circumstances.

The real issue for the environmental industry and consultants alike however is not one of a false or misleading statement rather the permissibility of hen picking small amounts of bonded asbestos. The defendants assert they have been advised in the past that hen picking is permissible. In fact many other consultants were of the same view as our clients including the defendants' expert whose evidence was not challenged by the EPA. From the evidence provided by the EPA in this matter it was clear significant efforts were made by the Authority to investigate the issue of hen picking.

The judgment serves to demonstrate the divergence between the science and the law and the lag that can sometimes occur between the scientists and the legislators. Most environmental consultants including the ones involved in this matter were of the view it was both reasonable and permissible to hen pick or screen bonded asbestos from soil. However the relevant regulation states that asbestos waste in any form cannot be re-used or recycled. Whilst it may be reasonable, prudent and in some instances diligent to hen pick bonded asbestos from soil, the fact is it is unlawful.

The judgment also sends a strong message to employees of consultant firms that they too are accountable for the written statements they make.

¹ EPA v Aargus Pty Ltd & anor [2013] NSWLEC 19.
² Ibid 6.
³ Ibid 6.
⁴ Protection of the Environment Operations Act 1999 (NSW) s 144AA.
⁵Protection of the Environment Operations (Waste) Regulation 2005 c 42(5).