The EPA admitted that it had overstepped its powers in giving its environmental sign-off to the landfills applying to receive the road project’s soil.
This is due to a legal error – the EPA did not wait to receive key information that it had requested of the landfills before approving their environment management plans.
The watchdog is now asking all of the landfills to submit new applications for approval following the embarrassing error, which has sent shockwaves across the waste industry.
The EPA’s admission has come about because it was being sued by Bacchus Marsh Grammar and the Moorabool Environment Group over the approval it granted to Maddingley Brown Coal. The watchdog came clean about the error the night before it was due to appear in the Supreme Court.
An EPA spokeswoman said after withdrawing Maddingley’s approval that the regulator was reviewing the approvals it granted to Cleanaway and Hi-Quality and would ask those operators to submit new applications for approval.
“The MBC [Maddingley Brown Coal Proceedings] caused the EPA to conduct a review of its decision to approve the TBM EMP [Tunnel-Boring Machine environmental management plan] submitted by Cleanaway and Hi-Quality,” the spokeswoman said.
“As a result of that review, the EPA has formed the view that its decisions to approve these environmental management plans are affected by similar technical administrative error and no longer stand as valid decisions under the relevant regulations.”
One senior industry source, who did not want to be named, said he had been inundated with texts and emails from industry people who were baffled by the error.
“Its a 101 type failing … it goes straight to the credibility and authority of the EPA,” they said.
Chris O’Neill, a spokesman for Sunbury Against Toxic Soil which opposes the soil being sent to Hi-Quality, said the EPA’s revocations had “shattered our faith in the regulator”.
“The regulator should be the gold standard and they’ve proven that they’re not,” he said.
“They knew they didn’t have this authority, we told them many times and they still went ahead with it until someone was willing to sue them.
“The cost to the community to run a case like this would have been many thousands of dollars … there are not a lot of community groups that have that level of funding to keep the regulators honest and we shouldn’t have to.
“The EPA should be doing what’s right for the community, not what’s right for Transurban or the state government.”
Opposition transport infrastructure spokesman David Davis said it was an “absolute debacle” and called for the EPA’s chief executive, Cathy Wilkinson, and Environment Minister Lily D’Ambrosio to step down.
“This is a monumental stuff-up and her [Cathy Wilkinson’s] position is not tenable, nor is the minister’s,” he said.
“The EPA has a special duty to safeguard our air, water and quality of life. It has shown itself to be able to be manipulated by the Andrews government, to cut corners and sign off on flawed approvals.”
A government spokeswoman said “rigorous science” had been used to assess the environment management plan applications, “but to avoid any legal uncertainty, EPA has determined that this is the best process”.
“The EPA’s focus has always been on the health and safety of the community,” she said.
“This is an administrative and procedural matter that is not related to the scientific assessment of the sites.”
The EPA’s approvals were granted under new regulations created in the wake of the West Gate Tunnel’s soil crisis, drawing criticism for cutting corners to help resolve a protracted commercial dispute and making up policy on the run.
In a departure from usual practice, the new rules were created without community consultation and they also block third-party appeal rights at VCAT, where concerns about the landfill approvals would ordinarily be raised.
The EPA admitted it signed off on Maddingley’s dumping plans when the operator was still required to supply extra information. This included the operator’s construction methods and materials for soil containment cells; the distance between the containment cell liner and groundwater; and its stormwater-management plan.
The EPA did not wait for this information and granted the approvals anyway, which is beyond its regulatory powers.
Timna Jacks is Transport Reporter at The Age