10 Nov 2016

EPA cracks down on waste recyclers

By Claire Smith and Laura Waterford

If the proposed changes go through, operators will be required to undertake a detailed review of their current practices to ensure compliance.

The NSW Environment Protection Authority (EPA) is proposing new minimum standards for the NSW construction and demolition (C&D) waste sector.  The consultation paper released by the EPA seeks to address concerns that environmental controls and processes in this sector are unsatisfactory and are not maximising the safe recovery of resources from C&D waste.  In addition the EPA is proposing new regulations to deal with waste transport, handling of asbestos waste and exhumation and off-site disposal of waste from landfills.

Problems identified

The EPA has identified a number of ongoing issues with C&D waste facilities which are licensed (or required to be licensed) in NSW.

The safety and environmental issues identified include:

  • poor screening and inspection processes that fail to properly remove contaminants from mixed C&D waste (including skip bins) before loads of waste are processed and sent offsite for re-use; and
  • the negligent handling of waste, including asbestos waste, at recycling facilities, causing recycled products to become contaminated.

From a productivity perspective, the EPA is concerned that many licensed facilities are diverting well under 50% of the C&D waste they receive from landfill, representing a significant loss of valuable resources.

What's being proposed

The proposed amendments to the Protection of the Environment (Waste) Regulation 2014 and Protection of the Environment (General) Regulation 2009 are intended to ensure the safety of the community, promote the protection of the environment and maximise resource recovery within the C&D waste management sector.

The proposed changes are very broad and are aimed at:

  • improving practices at landfills;
  • changing processes related to the handling of asbestos waste;
  • clarifying when transport waste deductions can be claimed;
  • implementing new operational purpose deductions;
  • clarifying how the waste levy is applied at resource recovery facilities;
  • improving monitoring at licensed facilities;
  • improving waste transport processes;
  • changing the definition of land pollution; and
  • changing the licensing requirements for some activities.

Improving practices at recycling facilities and landfill facilities

Licensed C&D waste facilities in the metropolitan levy area will be required to comply with new minimum standards for the inspection, sorting and recovery of waste from 1 March 2017.  In addition, it will be an offence for any licensed landfill facility to exhume waste from landfill or send mixed loads of waste offsite for disposal if it can lawfully accept that waste.

Changing processes related to the handling of asbestos waste

Requirements for handling, transporting and landfilling of asbestos, and in particular, the requirement asbestos-contaminated soils to wet down during transport, will be clarified.  Increased penalties for non-compliance will also be imposed.

Improving monitoring at licensed facilities

Resource recovery facilities licensed for non-thermal treatment will be required to undertake volumetric surveys (or other more suitable stocktake procedures) as and when required by the EPA.  The EPA will also have the power to estimate the amount of waste at a facility if it reasonably suspects that the waste is subject to mass loss or gain.

Changing the definition of land pollution and licensing requirements for some activities

The land pollution offence will be amended so that it does not automatically apply to onsite waste disposal (eg. where onsite contamination cells are proposed as part of in-situ remediation).  In addition,  the licensing requirements for facilities:

  • that receive biosolids or untreated timber;
  • which produce energy from waste; or
  • where waste is received from off-site, stored and/or transferred from one vehicle to another,

will be clarified.

What this means for you

While a number of the proposed reforms will provide much-needed clarity and increased certainty for the industry, the requirements relating to waste handling and monitoring processes at D&C waste facilities will mean operators must undertake a detailed review of their current practices to ensure compliance. Further, the requirement that asbestos-contaminated soils be wet down is likely to mean that material will be considerably more expensive to dispose of on a per tonne basis because of the increased weight.

What's next

The EPA is currently inviting submissions on the consultation paper until 17 November 2016.

Please contact us if you would like any further information or assistance with drafting submissions in response to the proposed reforms.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.