Resource Recovery orders and exemptions - how do they work?

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.

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