The Victorian Environment Protection Authority should have engaged with communities when making its decisions on West Gate Tunnel Project, Ombudsman says

In today’s climate it is unacceptable that environmental decision-making processes are inadequate and human rights concerns are overlooked, Victorian Ombudsman Deborah Glass says.

Following concerns from local communities near three sites in Bulla, Bacchus Marsh and Ravenhall approved by the EPA for the dumping of PFAS-affected spoil from the West Gate Tunnel Project, the Ombudsman announced an investigation in August 2021.

The investigation examined the adequacy of the EPA’s decision-making process for approving relocation of spoil from the West Gate Tunnel Project, following the discovery of the toxic chemical PFAS in groundwater samples along the tunnel route in June 2019.

The Ombudsman, who tabled her report in Parliament today, said that while the EPA complied with its legislation, its communication of decisions fell well short of reasonable community expectations.

“This failure to provide appropriate information and opportunities for communities to participate when making its approval decisions for sites to receive the spoil for the Project was unreasonable.

“It also gave no specific consideration to human rights, even though human rights were very much a focus for affected communities, who were worried about the impact of PFAS on themselves and their children, as well as waterways and wildlife.”

“The EPA told us consulting the community would be a waste of time – in effect, they thought there was no point in consulting because they knew what the community thought. But the lack of meaningful engagement caused unnecessary social, psychological and financial stress to the impacted communities, who felt left in the dark,” Ms Glass said.

The report found that the EPA was under pressure to get the project back on track and helped the Department of Environment, Land, Water and Planning develop bespoke regulations to enable potential sites to receive the spoil.

“It is vital that the EPA must not only be independent but be seen to be independent to maintain public confidence in the objectivity of its decisions. The absence of information and meaningful engagement from the EPA escalated the fear and anxiety in the community,” Ms Glass said.

Ultimately, the investigation concluded that the EPA did its job according to the science but that this should not have been its only lens.

The EPA assessed the danger was likely to be low but adopted a cautious approach to the management of the spoil, requiring all landfill operators to safely contain PFAS at ten times the amount likely to be present. The decisions were in fact compatible with the right to life and the rights of the child. But it failed to convince the community of this.

Since March 2022, the EPA has tested the excavated spoil and from April 2022 it has published the results on its website. In addition to publishing the test results, the EPA has begun a series of monthly information sessions for the community near the Bulla site, where spoil is already being disposed. 

The Ombudsman commented: “I commend these changes, which show more open and transparent community engagement, and I welcome the EPA’s commitment to rebuilding trust. It seems some hard lessons have been learned – which should at least benefit future affected communities.”

ENDS