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Asbestos Contamination in Mulch: A Major Setback for Australia’s Circular Economy

Asbestos has been discovered in mulch used in playgrounds, schools, parks, and gardens across Sydney and Melbourne, causing significant concern among local communities who fear for their loved ones’ health. Exposure to asbestos poses serious health risks, potentially leading to chronic lung diseases depending on the intensity, frequency, and duration of exposure.

The contamination is believed to originate from timber waste from construction and demolition sites that was processed into mulch. To date, 60 locations in Sydney and 12 in Melbourne have been identified as contaminated, with the numbers likely to rise as investigations continue.

Following these discoveries, an investigation in Queensland also found asbestos in one compost and one mulch product.

The Largest Scandal in Australia’s Circular Economy

The widespread asbestos contamination is arguably the largest scandal in the history of Australia’s circular economy, which aims to recycle and reuse materials sustainably. Our research underscores the urgent need for mandatory certification of recycled products like mulch to ensure safety. Current local, state, and national policies on sustainable procurement do not mandate such certification, revealing significant ignorance and resistance within the recycling sector.

Overcoming these obstacles is crucial to ensuring the quality, performance, environmental friendliness, and safety of recycled products.

Actions Taken and Broader Implications

The initial detection of asbestos in NSW triggered a series of actions involving the NSW and Victorian Environment Protection Authorities, local councils, Fire and Rescue NSW, and a NSW taskforce comprising agencies like SafeWork, Public Works, and the Natural Resources Access Regulator. Measures include testing affected areas, cordoning off contaminated garden beds, engaging licensed asbestos removalists, and sampling to determine disposal options.

This scandal raises concerns about the reckless implementation of circular economy principles in Australia. It may deter local councils and other users from procuring recycled materials, potentially undermining efforts to advance the circular economy.

Regulatory Shortcomings

Under NSW legislation, mulch must not contain asbestos or other contaminants like engineered wood products or glass. However, it is not mandatory for suppliers to test for these contaminants, nor are there specified procedures to ensure mulch is asbestos-free. Existing policies, such as the NSW Environment Protection Authority’s Mulch Order 2016, have failed to prevent contamination, highlighting the need for effective strategies that integrate encouragement, education, and enforcement.

The Case for Certification

At RMIT University’s Construction Waste Lab ([CWL](https://www.rmit.edu.au

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Court of Appeal’s Stance on Employer Liability for Asbestos Exposure in the 1950s and 1960s

Over the years, the Court of Appeal has frequently been tasked with determining the extent to which employers should have protected their employees from asbestos dangers. This is a challenging endeavor, as highlighted in a recent conjoined appeal, due to the absence of witnesses with direct personal experience or knowledge of the medical standards and employer practices from that era. Consequently, the court must rely on the literature available from the 1950s and early 1960s to assess what a reasonable employer should have done.

Case Summaries

White – First Instance

The deceased worked as a lab technician at Sefton General Hospital, Liverpool, from 1948 to 1960 and was intermittently exposed to asbestos. Mr. Jeremy Hyam KC, sitting as a Deputy Judge at the High Court, found that while the exposure was low and intermittent, it still posed a medically significant risk of mesothelioma. The judge concluded that during the 1950s and early 1960s, occasional low-level asbestos exposure was not considered hazardous by prevailing standards, and thus, the defendants could not have known to take precautions against such risks.

Cuthbert – First Instance

The deceased was exposed to asbestos during construction work at Queenswood School, Cheshunt, between 1956 and 1959. HHJ Freedman, sitting as a Judge at the High Court, found that the exposure was irregular and intermittent, mainly through contact with carpenters cutting asbestos material. The judge noted inconsistencies in the deceased’s witness statements and concluded that a reasonable employer at the time could not have foreseen a significant risk of injury from such low-level exposure.

Appeal Issues

The appeals in both cases centered on whether the correct test of foreseeability had been applied. In Cuthbert, there was also an appeal regarding the factual findings.

Literature Review

The court reviewed approximately 70 publications, focusing on 28 key documents. This review included historical papers and regulations from the 1930s to the 1970s, highlighting a shift in understanding the risks associated with asbestos exposure. Key milestones included:

– The Merewether and Price paper (1930) linking asbestos exposure to fibrosis.
– The Asbestos Industry Regulations (1931).
– Professor Doll’s paper (1955) linking asbestosis to lung cancer.
– Wagner’s paper (1960) and Newhouse and Thompson’s paper (1965), which significantly changed perceptions of mesothelioma risks.

The literature indicated that until the 1960s, only substantial asbestos exposure was considered risky. It wasn’t until Wagner’s and Newhouse/Thompson’s papers that lower-level exposures were recognized as hazardous.

Legal Principles

The judgment reiterated established legal principles from notable cases such as:

– Bourhill v Young [1943] AC 92
– Baker v Quantum Clothing [2011] 1 WLR 1003
– Stokes v Guest, Keen and Nettolfold [1968] 1 WLR 1776
– Thompson v Smiths Shiprepairers [1984] QB 405
– Margereson v J W Roberts Ltd [1996] PIQR P358
– Page v Smith [1996] AC 155
– Williams v University of Birmingham [2012] EWCA Civ 1242
– Jeromson v Shell Tankers [2001] EWCA Civ 101
– Maguire v Harland and Wolff PLC [2005] EWCA Civ 1

The court emphasized that employers are not required to take all possible steps to prevent unforeseeable risks. The correct question was whether a reasonable employer in the 1950s should have foreseen a risk of personal injury from the levels of asbestos exposure found by the judges.

Appeal Resolutions

In Cuthbert, the court upheld the first instance judge’s factual findings. Both appeals were dismissed as the judges had correctly identified the issues and applied the right questions. The evidence indicated that low-level exposure would not have prompted recommendations for precautionary measures at that time.

Conclusions

The case provides several key takeaways:

– Employers in the 1950s and early 1960s were not expected to foresee risks from low-level asbestos exposure.
– A person is not obliged to prevent risks that are not reasonably foreseeable.
– Prior to Wagner’s paper (1960), asbestos risks were limited to high-level exposures causing asbestosis and lung cancer.
– The two-stage test from Bussey v Anglia Heating [2018] EWCA Civ 243 remains valid: (1) Should the defendant have been aware of a significant risk of asbestos-related injury? (2) If so, did they

In the first five months of 2024, the United States Environmental Protection Agency (EPA) finalized two significant rules under section 6(a) of the Toxic Substances Control Act (TSCA), imposing extensive bans and restrictions on the use of chrysotile asbestos and methylene chloride. Aside from a 2019 EPA rule prohibiting the manufacturing, processing, and distribution of methylene chloride for consumer paint and coating removal, these are the first broadly applicable risk management rules issued since Congress amended TSCA in 2016 to address unreasonable risks to human health or the environment.

These rules have already faced legal challenges. Numerous lawsuits filed by industry, labor, and environmental groups across four circuit courts have been consolidated by a federal judiciary panel into the Fifth Circuit Court of Appeals for the chrysotile asbestos rule. Additionally, two companies have jointly petitioned for review of the methylene chloride rule in the Fifth Circuit, while an environmental group has challenged it in the Ninth Circuit.

The implementation of these rules may offer insights into future risk management rules that the EPA plans to introduce according to the following schedule:

!EPA Rule Implementation Timeline

EPA Ban on Chrysotile Asbestos

On March 28, 2024, the EPA issued its final rule under section 6(a) of TSCA to ban chrysotile asbestos. The EPA identified chrysotile asbestos as the only type of asbestos currently imported, processed, and distributed in commerce in the US. The final rule bans all known uses of chrysotile asbestos and imported products containing it, including diaphragms in the chlor-alkali industry, sheet and other gaskets, oilfield brake blocks, and aftermarket automotive brakes, linings, and other vehicle friction products.

For certain uses like chrysotile asbestos diaphragms in the chlor-alkali industry and sheet gaskets for titanium dioxide production, the EPA’s final rule imposes interim workplace protection controls. These include an existing chemical exposure limit (ECEL) of 0.005 fibers/cubic centimeter as an 8-hour time-weighted average, exposure monitoring, regulated areas, respirators, and exposure control plans.

The prohibitions and phase-in dates for chrysotile asbestos are detailed below. Notably, certain products already installed for use by their compliance dates are exempted.

!Chrysotile Asbestos Prohibitions
!Chrysotile Asbestos Prohibitions
!Chrysotile Asbestos Prohibitions
!Chrysotile Asbestos Prohibitions

Methylene Chloride Rule

On May 9, 2024, the EPA published its final risk management rule on methylene chloride. This rule prohibits certain conditions of use while allowing others to continue under a rigorous worker protection program and provides extended timelines for some uses. These restrictions do not apply to the manufacture, import, processing, and distribution of methylene chloride for consumer use in paint and coating removal, which has already been prohibited under another EPA TSCA regulation.

The use prohibitions are outlined below:

!Methylene Chloride Use Prohibitions

Exemptions from Methylene Chloride Ban

The EPA included a de minimis exemption making the final rule’s requirements inapplicable to products containing less than 0.1% methylene chloride by weight. Additionally, manufacturing, processing, or distributing methylene chloride solely for export is exempted from all prohibitions except for worker chemical protection program requirements. No similar exemptions were included in the asbestos final rule.

The final rule for methylene chloride also exempts certain conditions of use from the bans if they adhere to a rigorous workplace

Over the past century, the U.S. military heavily relied on asbestos to meet the demands of World War II, which required large quantities of affordable materials for military equipment. Asbestos was abundant and inexpensive, leading manufacturers to overlook its health risks. Today, many veterans suffer from health issues due to toxic exposure, including asbestos-related diseases.

The Navy was the primary user of asbestos, as ships required extensive insulation. The Two-Ocean Navy Act expanded the U.S. Naval Forces by over 70%, leading to increased shipbuilding that utilized asbestos insulation extensively. This put naval personnel on ships built before the 1980s at high risk of asbestos exposure, with many developing severe diseases decades after their service.

New York’s World War II naval history includes the Bethlehem Steel Shipyard in Staten Island, established in 1895. During World War II, this shipyard produced asbestos-containing ships at full capacity, employing around 12,000 workers. The expansion during the war meant more civilians and military personnel were exposed to asbestos, resulting in thousands of cases of asbestos exposure.

Asbestos contamination was not limited to naval bases; other military branches also faced similar risks. This remains a significant health issue for all veterans, including those in New York State and New York City.

New York hosts five military bases, including the U.S. Military Academy Army Base in West Point and the Saratoga Springs NSU Navy Base, which is crucial for nuclear power training. These bases also posed potential asbestos exposure risks to military personnel.

Asbestos dust is extremely toxic. When disturbed, airborne asbestos particles can remain in the air for hours and are easily inhaled or ingested due to their microscopic size. These fibers cause permanent damage to vital organs and lead to severe diseases.

One of the most alarming aspects of asbestos-related diseases is the long latency period between exposure and symptom onset. Veterans may only discover the effects of exposure decades later when diagnosed with conditions like asbestosis, lung cancer, mesothelioma, or other severe respiratory diseases.

New York ranks 24th in the nation for lung cancer and is a top state for asbestos exposure. Veterans should seek medical attention promptly, as early detection significantly improves treatment outcomes and extends life expectancy. Proactive steps include:

– Scheduling regular health check-ups: Periodic medical examinations and discussing potential asbestos exposure during military service are crucial. Veterans should undergo chest X-rays, CT scans, and pulmonary function tests to detect any damage caused by asbestos fibers.

– Learning about their legal rights: Veterans who know or suspect they were exposed to asbestos should be aware of their rights and options. Legal avenues and compensation programs are available through asbestos trust funds and Veterans Affairs to support those harmed by asbestos exposure.

Veterans can also play a vital role in raising awareness by sharing their experiences with asbestos exposure, ensuring others are informed and protected.

Beyond expressing gratitude to veterans, it is our responsibility to safeguard their well-being. By highlighting this ongoing danger, we can ensure that those who served our nation receive the care and support they deserve.

The principal of St Andrew’s Grammar School in Dianella is spearheading opposition against a proposed toxic waste dump near the school. Craig Monaghan, the head of the school, discovered the plan by chance, which involves converting a former landfill site to accommodate hazardous solid waste, including asbestos. Monaghan warns that the proximity of the dump to the school could pose significant health risks to the children.

Johnson & Johnson Faces Over 50,000 Lawsuits Over Talc-Based Baby Powder

Johnson & Johnson (J&J) is embroiled in more than 50,000 lawsuits in the United States. Plaintiffs claim that asbestos in J&J’s talcum-based baby powder products caused ovarian cancer or mesothelioma, both linked to talc exposure.

Financial Impact and Legal Maneuvers

To date, J&J has paid over $2 billion in settlements and spent approximately $4.5 billion defending and settling talc-related litigation, according to the Wall Street Journal. Bloomberg reports that J&J has also spent $178 million on a controversial bankruptcy strategy, which has failed twice. This strategy, known as the Texas Two-Step, involved creating a new company to absorb liability for talc settlements and then declaring it bankrupt. Critics argue this tactic abuses bankruptcy laws and undermines consumer protections.

Internal Knowledge and Marketing Practices

Documents revealed during trials, as reported by Bloomberg and Reuters, indicate that J&J knew for decades about potential asbestos contamination in its talc supplies. Despite this knowledge, the company intensified its marketing efforts towards African American women and other high-use groups. J&J maintains on its Facts About Talc website that its talc-based products are asbestos-free and safe to use.

Talc and Cancer Risks

Talc is a naturally occurring mineral that can sometimes be contaminated with asbestos, a known carcinogen. The U.S. Environmental Protection Agency and the World Health Organization’s International Agency for Research on Cancer (IARC) classify asbestos as a human carcinogen with no safe exposure level. IARC also classifies talc containing asbestos as carcinogenic to humans and suggests that perineal use of talc body powder not containing asbestos is possibly carcinogenic based on limited evidence.

J&J’s Response to Allegations

In response to the lawsuits, J&J stated it will “vigorously litigate” the “meritless” claims, emphasizing that over 40 years of studies by independent medical experts support the safety of cosmetic talc.

Historical Context of Talc-Based Baby Powder

J&J launched its baby products line in 1894 with talc-based baby powder. Talc gives products a silky feel but can be contaminated with asbestos due to their proximity in natural deposits. Asbestos fibers can be inhaled or ingested, posing significant health risks.

Legal and Regulatory Challenges

Internal documents suggest that J&J was aware of asbestos contamination from at least 1971 but did not disclose this information to regulators or the public. Reports from various labs over several decades identified asbestos in J&J’s talc products. Despite these findings, J&J has consistently denied the presence of asbestos in its products.

Marketing to Vulnerable Populations

In response to declining sales following IARC’s classification of cosmetic talc as possibly carcinogenic, J&J targeted African American and overweight women for increased sales. Internal marketing memos revealed strategies to focus on areas with higher African American populations.

Discontinuation and Global Sales

In May 2020, J&J announced it would discontinue sales of talc-based baby powder in the U.S. due to declining demand and ongoing litigation. However, the company continues to sell these products globally.

Texas Two-Step Strategy

J&J’s attempt to use the Texas Two-Step strategy to manage its legal liabilities has been widely criticized. The strategy involves creating a new entity to handle liabilities and then declaring it bankrupt to halt lawsuits temporarily. Despite robust sales revenues, J&J created LTL Management to manage talc-related claims and declared it bankrupt two days later.

Congressional and Legal Pushback

Members of Congress have condemned J&J’s bankruptcy maneuver as an attempt to deny victims their day in court. Legislation has been introduced to prevent companies from abusing bankruptcy laws to evade accountability.

Ongoing Litigation and Settlements

As of June 2024, J&J continues to face jury trials and pursue settlements. In June, a jury awarded $260 million to an Oregon woman who developed mesothelioma from using J&J’s talc powder.

Suing Medical Researchers

As part of its legal strategy, J&J has sued medical researchers who published studies linking talc-based powders to cancer, claiming these studies damaged its reputation.

Availability of Talc-Based Baby Powder

Despite announcing the discontinuation of talc-based baby powders in the U.S., J&J continues to sell existing inventory until supplies run out. Some products are still available for sale online.

History of Unsafe Products

J&J has faced numerous legal challenges over unsafe products, including opioids, Risperdal, transvaginal mesh products, hip implants, Xarelto, and Invokana. The company has paid billions in settlements but continues to face scrutiny over its practices.

Additional Resources

For further reading on the issues surrounding

The EPA issued a clean-up notice to Jemena, despite the company not having operated the former gasworks at the site. Jemena acquired the lease through a broader transaction. As part of the notice, Jemena is required to conduct daily air monitoring at multiple locations and report the results to the EPA each day.

### Southern Highlands Property Owner Fined for Illegal Tree Removal and Asbestos Dumping

The owner of a Southern Highlands property, who illegally cleared five hectares of native trees, has been identified as Chaza Khouzame. She is married to George Khouzame, a deregistered builder responsible for the collapse of a Condell Park home last year. George Khouzame is now facing prosecution for misleading authorities about 10 tonnes of asbestos-laden construction waste found on the rural site.

Chaza Khouzame was fined $135,000 last week for the illegal tree removal. Her husband, George, pleaded guilty in May to nine counts of fraud and using unlicensed contractors. This follows a government investigation into his company, Hemisphere Constructions, after the Condell Park home collapse.

The Environmental Protection Authority (EPA) is conducting a lengthy investigation into the Canyonleigh property registered in Chaza Khouzame’s name. The EPA alleges that the property was used to store over 10 tonnes of construction waste, including asbestos.

#### Asbestos Found on Cleared Land

The EPA was alerted to the alleged transportation and land application of fill material to the Canyonleigh site in November 2022. During an inspection, EPA officers observed waste applied to the land, estimating it to be over 10 tonnes. They collected six fragments of suspected asbestos-containing material.

Despite being asked to submit a report on asbestos contamination, Chaza Khouzame’s initial submission in May 2023 was deemed insufficient by the EPA. She was given an extension in August to remove the waste by the end of September. However, further testing in December revealed more asbestos, and she was instructed to remove it by February. It remains unclear if she has complied.

#### Hemisphere Constructions Involvement

Hemisphere Constructions, where George Khouzame was the sole director before its building license was canceled, was active on the site during the tree removal period. Photos from July 2021 show a demountable shed with the Hemisphere Constructions logo on the property. Bulldozers and other heavy machinery were also present.

Local residents reported seeing the Khouzames on the property frequently and raised concerns about dust from the site contaminating their homes. The EPA has launched legal action against George Khouzame for allegedly providing false information about the waste.

#### Legal Proceedings and Personal Struggles

George Khouzame is set to appear in court on June 12 for charges related to providing false information to the EPA. This follows his recent guilty plea to multiple charges, including publishing misleading material and engaging unlicensed contractors.

In court, Chaza Khouzame described her financial struggles and marital difficulties, which limited her financial support from her husband. She claimed to be behind on home loan repayments and used proceeds from selling the Canyonleigh property to catch up.

Despite these claims, Chief Justice Brian Preston did not reduce her fine due to insufficient evidence of financial hardship. The Khouzames have not responded to multiple requests for comment.

—

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Last year, the opening of the Rozelle interchange in Sydney’s inner west quickly escalated from a traffic issue to an environmental scandal when a child took home a piece of asbestos from the newly developed Rozelle parklands.

This incident raised significant concerns because New South Wales law strictly prohibits the reuse or recycling of asbestos waste in any form. Asbestos fibres, if inhaled, can lead to mesothelioma, a deadly cancer, many years later. Australia has a national ban on asbestos.

In response, NSW Premier Chris Minns stated that the state’s Environment Protection Authority (EPA) was making every effort to trace the source of the contaminated mulch. The EPA discovered that mulch containing asbestos had been distributed across Sydney, including to schools and parks. Media outlets and some reporters attempted to reassure the public by noting that the asbestos fragments were mostly “bonded,” which are considered less dangerous than fibres. To date, no prosecutions have been made.

However, it was later revealed that the NSW government had concealed a more pressing regulatory failure. The EPA was managing a situation where some of Australia’s largest waste companies had been distributing materials known to contain asbestos fibres, microplastics, lead, and other contaminants.

These materials, referred to as “recovered fines,” are produced from construction and demolition waste residues and are intended for use in construction projects, roadworks, and public spaces like sporting fields. They are also sold as inexpensive fill by landscaping and gardening companies.

In February, Guardian Australia exposed this deeper aspect of the scandal, revealing that the EPA had conducted extensive studies in 2013 and 2019. These studies showed that waste facilities producing recovered fines were not complying with regulations designed to limit the spread of contaminants.

Environment Minister Penny Sharpe acknowledged this regulatory failure but has since become part of it. Recovered fines represent a significant industry, with around 700,000 tonnes produced annually. While much of the contaminated material may be safely buried under roads, some has ended up in parks, schools, gardens, playgrounds, and childcare centres. The exact locations are unknown because no one has been tracking it despite alarming findings. Asbestos near children is particularly concerning as they are more likely to play in dirt and inhale fibres.

The EPA was aware that its compliance system had failed. Some staff advocated for reforms to restrict the use of recovered fines and strengthen testing regimes. After extensive industry consultation, the EPA announced in 2022 that it would implement a new system. However, facing backlash from the waste industry, which claimed it was caught off guard and that jobs were at risk, the EPA reversed its decision. Consequently, the old compliance system remains largely unchanged.

In March, Sharpe responded by introducing tougher penalties for contaminated waste offences. While this move is welcome, it does not address other significant issues related to non-compliance. Prosecutions are rare, and EPA staff are instructed to use them as a last resort. Even when companies are fined for extended breaches, they rarely face maximum penalties, and large companies can absorb fines as high as $4 million.

Sue Higginson, the NSW Greens’ environment spokesperson and former CEO of the Environmental Defenders Office, argued that the minister could prioritize harmful substances in consumer products and prevent them from entering the environment through regulatory changes.

Guardian Australia recently reported that some of Australia’s largest waste companies, including Bingo Industries and Benedict Industries, were found in a 2019 investigation not to be meeting EPA sampling rules.

Additionally, the integrity of the commercial laboratory system, crucial for environmental regulation, is under scrutiny. While no laboratories have been accused of wrongdoing, there are calls for reforms to prevent potential manipulation of results.

In light of government inaction, Guardian Australia independently purchased four products from Sydney landscape supply shops and had them tested by accredited private laboratories. Two products did not comply with state regulations on pH levels, and one contained asbestos fibres. Another product that passed laboratory tests contained large physical contaminants like glass and a metal screw.

Despite these alarming developments, there is no evidence of increased urgency from authorities. An EPA spokesperson stated that more information is needed. Minister Sharpe has said she will wait for a report from the chief scientist, due at the end of the year, before considering any necessary changes. This investigation is secretive and subject to industry pressure.

Without the efforts of a former EPA compliance officer, a Greens MLC, and Guardian Australia’s environment team, the public would remain unaware of the issues surrounding recovered fines. It raises the question: how much more needs to be exposed before the NSW government takes decisive action? A sustainable circular economy should not expose the public to unacceptable health risks. While parents would be concerned if their child picked up a piece of asbestos in a park, they would be even more alarmed if they discovered their child had been playing in mulch containing asbestos fibres or other contaminants for years.

Wendy Bacon was previously a professor of journalism at UTS and is a member of Community Environment Monitoring.