Residents launch fresh legal attack on EPA over toxic West Gate soil

The Andrews government is facing a fifth legal challenge on the West Gate Tunnel, putting even more pressure on the project that has blown out by as much as $4 billion and is running at least two years late.

The state’s Environment Protection Authority is being sued by residents on Melbourne’s western fringes who say they were not consulted on a key decision to send some of the toll road’s contaminated soil to a landfill in Bacchus Marsh.

Soil from the West Gate Tunnel project. Credit:Wayne Taylor

The legal bid comes as internal EPA audits obtained under Freedom of Information laws reveal the watchdog did not initially want to send the project’s 3 million tonnes of contaminated rock and soil to landfill.

The EPA wanted to treat and reuse the waste that is laced with per- and polyfluoroalkyl chemicals – the potential carcinogens known as PFAS – but the state lacked viable options to do this.

The Moorabool Environment Group is taking the EPA to the Supreme Court because it fears that PFAS will leach out of landfill cells at the Maddingley Brown Coal landfill near Bacchus Marsh.

They say there is a high risk the chemicals would contaminate the nearby Parwan Creek and Werribee River, which irrigate several food farms and are home to a number of endangered species.

Maddingley Brown Coal in Bacchus Marsh is one of two landfill sites approved to take most of the soil from the West Gate Tunnel.Credit:Luis Ascui

Emails seen by The Age show the group repeatedly sought to discuss these concerns with the EPA, but the watchdog told them in April this year it had no legal obligation to engage with them.

Group president Jodie Valpied accused the EPA of continuing to “deride the concerns of our community”.

“The disregard for human and environmental health is driven by commercial and short-term political interests,” she said.

The group argues they were denied procedural fairness and are requesting a judicial review.

This is the second time the Moorabool residents group has sued the EPA over approvals it has given to Maddingley Brown Coal in relation to the West Gate project.

The last challenge resulted in the EPA embarrassingly quashing all of the landfill approvals it granted on the project, just days before it was due to appear in court in December last year.

An EPA spokesman said Maddingley Brown Coal would be engineered to accept waste with a level of PFAS contamination that is “10 times the highest level in groundwater in the tunnel alignment”.

He also said the approvals the EPA had given to landfills did not count as the “final decision on where the spoil will be sent”.

This marks the fifth legal challenge against the government on the West Gate Tunnel.

The Moorabool Environment Group is behind a separate challenge against Planning Minister Richard Wynne for granting approval for the soil disposal plans, in addition to three councils: Hume, Melton and Moorabool Shire.

While all of the West Gate Tunnel rock and soil will now be dumped in landfill, secret EPA audits reveal the EPA considered this as a last resort.

Documents from 2019 show the regulator was resistant to sending the project’s waste to landfill, where it would use up valuable space needed for household rubbish.

The watchdog wanted to treat the project’s PFAS-contaminated dirt and reuse it, but the state lacked viable facilities to do this.

“It is still our preference that either alternative reuse options and/or treatment are considered ahead of disposal,” the EPA stated in an August 2019 audit obtained under Freedom of Information laws.

“Treatment of large volumes of low concentration PFAS in soil is not currently cost effective or practical logistically. Similarly, bulk scale treatment of the spoil is not considered to be an option … in the current absence of other viable options, it is considered that disposal to landfill is satisfactory.”

The EPA’s former executive director Tim Eaton said he was concerned that dumping the project’s waste in landfill would use up valuable capacity in a letter to tenderers for soil testing work.

“EPA notes that the depositing of reusable waste at landfills may have adverse impacts to landfills including congestion and the displacement of valuable landfill airspace best suits to municipal space.”

Internal emails also reveal that the EPA, Transurban and its builders knew as early as September 2018 that there was PFAS contamination in the project’s waste.

But the documents — which redact the names of those sending and receiving emails — show long delays in the EPA granting the project’s builders a waste classification, which was needed to dump the soil in any Victorian landfill.

In late 2018, EPA employees said granting classifications were a “matter of urgency”, but it was only in April, 2019 that draft classifications were finally granted.

A government spokeswoman said Maddingley Brown Coal “has all the necessary planning and environmental approvals to commence building and operating the soil disposal site if it’s chosen to do so.”

She said the landfill was subject to very strict requirements to protect the environment and the health of the community.

“Transurban and its builder have had four years to resolve this issue. They need to make a decision on a site for soil disposal and get on with building this project.”

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