When summer activities go wrong: Playgrounds and asbestos

For many families, summer in Melbourne means a lot of time spent in playgrounds where common council park material “tan bark” is in abundance. Many will recall the 2024 reports of asbestos being found in playgrounds, parks and reserves in Altona North, Altona Meadows, Brighton, Brooklyn, Clyde North, Cranbourne, Elwood, Newport, Pascoe Vale South, and Sunshine West.

An increasing number of asbestos-related findings have shone the light on the powers of the Environmental Protection Agency (EPA) and their abilities to reprimand those who are dumping asbestos in public areas, particularly those where our children play.

Each State has its own EPA and interestingly the scope of their powers vary. As do the extent of their fining powers.

In March 2024, changes to the New South Wales EPA legislation kicked off to improve environmental protection and increase penalties for breaches of protective environmental laws. Of these changes, the most significant are:

• the increase in maximum penalties, especially for corporate offenders. The maximum penalty for corporations has been increased to $15 million for certain offences regarding individuals knowingly or recklessly causing environmental harm by engaging in conduct that results in pollution (hello, midnight dumpers of asbestos waste in local playgrounds!)
• stricter controls on waste management and resource recovery, to address ongoing concerns over pollution from industrial and commercial activities.
• additional enforcement powers. This includes the ability to issue more prohibition notices and compliance orders for businesses that are found to be in breach of environmental regulations.
• greater authority to pursue swift enforcement actions, particularly when there is a risk of environmental harm, rather than having to go through lengthy processes of investigation and court proceedings.

The implementation and employment of these powers swiftly followed findings of extensive asbestos dumping in NSW suburbs. Meanwhile – the Victorian EPA continues to investigate the playground offences, posing questions of whether or not if the Victorian EPA had the same powers as NSW, whether quicker action would be imposed closer to home.

Already the NSW EPA has started legal action against three companies and one person because of asbestos being found in mulch.

This follows the biggest investigation in the EPA’s history, which began when bonded asbestos was discovered in mulch at Rozelle Parklands. The investigation involved checking over 300 sites, and 79 of them were found to have used contaminated mulch. All of these sites have now been cleaned up.

The charges involve 102 offences against the following:

• VE Resource Recovery Pty Ltd (1 charge)
• Arnold Vitocco, the director of VE Resource Recovery Pty Ltd (1 charge)
• Two companies, Freescale Trading Pty Ltd and Runkorp Pty Ltd, both trading as Greenlife Resource Recovery Facility (50 charges each).

These offences relate to 26 sites, including Rozelle Parklands.

The charges cover five main areas:

1. VE Resource Recovery Pty Ltd allegedly didn’t manage its activities properly, breaking its environmental license.
2. Arnold Vitocco, as the director, is also accused of responsibility for the company’s failure to meet licensing requirements.
3. Freescale Trading Pty Ltd and Runkorp Pty Ltd are accused of carrying out resource recovery and waste storage activities without the required EPA license.
4. The two Greenlife companies are accused of breaking a specific rule, the Mulch Order 2016, related to mulch management.
5. The two Greenlife companies are also accused of reusing asbestos waste, which is not allowed.

The Directions Hearing in relation to the prosecution of the above offences will be on Friday, 7 February 2025. Victoria will watch with interest.

For more information about asbestos law and exposure in a public space, contact Brave Legal on 03 9070 9816.