Under the Protection of the Environment Operations Act 1997 (NSW) the
Environment Protection Authority (EPA)
has the power to grant exemptions from some requirements to hold an Environment
Protection Licence (EPL) or to pay
the waste levy, where it can be demonstrated that a specific type of waste can
safely be used for another purpose. However, the exemptions are subject to
strict conditions.
Currently, there are two separate types
of documents that set out the strict conditions required to be met before
specific types of waste can be used for a particular purpose. These are called
resource recovery orders and resource recovery exemptions which are made under
clauses 91 to 93 of the Protection of the
Environment Operations (Waste) Regulation 2014 (NSW).
Resource
recovery orders outline
conditions that must be met by generators
and processors of waste in order to lawfully supply recycled waste
for the purposes of land application, use of the waste as fuel or in connection
with a process of thermal treatment. Resource recovery exemptions set out
the conditions that must be met by consumers
and receivers of recycled waste who wish to apply this waste to
land, or use the waste as fuel or in connection with a process of thermal
treatment.
If the consumer/receiver abides by the conditions in the exemption, they will be exempt from specific requirements set out in the exemption, such as
holding an EPL, levy liability, waste transport certificates, or annual reporting.
However, it is important to note that the resource recovery orders and
exemptions do not remove the requirement to comply with planning consent
requirements.
Example
of the application of the Recovered Aggregate Order & Recovered Aggregate Exemption
2014
The recovered aggregate order and exemption
applies to the production and supply of recovered aggregate for application to
land as a road making material, or in building, landscaping or construction
works. Recovered aggregate means material comprising of concrete, brick, ceramics, natural rock and asphalt processed into an
engineered material. This does not include refractory bricks or associated
refractory materials, or asphalt that contains coal tar.
The
Recovered Aggregate Order 2014 (“Order”)
The Order applies to any person who
supplies recovered aggregate that has been generated, processed or recovered by
the person.
Part 4 of the Order lists the processor
requirements which include, but are not limited to:
-
Preparing
a sampling plan and undertaking specific sampling and testing;
-
That
the recovered aggregate is not to be supplied to any person if
particular chemical concentrations exceed the maximum amount listed;
-
Ensuring
that testing of samples is undertaken by National Association of Testing
Authorities (NATA) (or equivalent) approved laboratories; and
-
Providing
a written statement of compliance as well as copies of the Order and Exemption
to the consumer.
The
Recovered Aggregate Exemption 2014 (“Exemption”)
The Exemption applies to any person who
applies or intends to apply, recovered aggregate to land.
Part 7 of the Exemption lists the conditions
of exemption which include, but are not limited to:
-
Not
using the exemption for applications such as the construction of dams, mine
site rehabilitation etc.;
-
Keeping
a written record of the quantity of recovered aggregate received and the name
and address of the supplier;
-
Making
any records available to authorised EPA officers on request; and
-
Ensuring
that any application of recovered aggregate to land must occur within a
reasonable period of time after its receipt.
Proposed
changes for managing construction & demolition waste (C&D waste) in NSW
As many would recall, on 21 October
2016, the EPA released a consultation paper on the minimum standards for
managing construction and demolition waste in NSW. The consultation paper
proposed a number of reforms that will affect the waste industry as a whole if
legislated. One of the proposed changes is the removal of the general recovered
fines order and exemption which is to be replaced by site-specific recovered
fines orders that will be issued by the EPA. This means that if the reforms are
legislated, individual facilities will need to apply to the EPA to obtain an
order to lawfully recover fines.
Between 21 October 2016 and 17 November
2016 the consultation paper was open to the public for consultation. The next
step in the process is for the EPA to prepare a consultation report to address
the issues raised during the consultation. No updates have been provided to the
public to date. When the consultation paper was released, it was indicated that
the proposed changes would be implemented on 1 March 2017. Given the impending deadline
and the radio silence to the public from the EPA on this matter, not to mention
the ministerial change, it is highly unlikely that this deadline will be met.
This means that the current regime of
resource recovery orders and exemptions that apply to fines will remain in force. The current
resource recovery orders and exemptions are available at: http://www.epa.nsw.gov.au/wasteregulation/orders-exemptions.htm. Where no resource recovery order or
exemption exists for the intended use of a waste material, an application can
be made to the EPA.
G&B Lawyers
Office: Suite 1, Level 1, 229 Macquarie Street, Sydney, NSW 2000
Mail: GPO Box 1849, Sydney, NSW 2001
M: 0481 287 528 | 0411 067 367
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