Navigating the challenges in waste and recycling regulation

McCullough Robertson Lawyers
By Kate Swain*, Partner and Sarah Hausler**, Partner at McCullough Robertson Lawyers
Monday, 21 June, 2021



Navigating the challenges in waste and recycling regulation

With activity ramping up in Australia’s waste management and recycling sector, supported by government policy and funding, businesses are striving to incorporate better waste recovery and re-use into their daily operations as we see a growth in circular economy initiatives across the economy.

However, the handling, transportation and disposal of waste requires strict compliance with the various regulatory frameworks that exist in different jurisdictions around the country. To achieve a successful transition to a greener economy, it is also essential that waste processing technologies and advanced manufacturing of waste products comply with strict environmental operating standards.

State-based action — prosecutions

Community expectations for high environmental performance of the waste and recycling industry continue to increase, resulting in increased environmental standards and compliance action by the regulators. The enforcement of environmental regulation is key in addressing and preventing unlawful waste disposal, as well as environmental pollution, land contamination and associated public health issues. There have been several waste-related prosecutions around the country, which aim to discourage activities such as stockpiling harmful waste or illegal waste dumping.

Recent examples of regulatory action taken by the New South Wales Environmental Protection Authority (EPA) in 2021 include:

  • Prosecution of an individual director who illegally disposed of asbestos-contaminated soil and falsified waste disposal documents, resulting in a 12-month prison term. The company was also fined $450,000 for related offences.
  • An enforceable undertaking was accepted by the EPA from a developer who agreed to pay more than $1 million to clean up land that was allegedly used to illegally store hazardous construction waste.
  • A fine of $15,000 to a waste operator for incorrect storage of dangerous chemicals and flammable liquids being directly exposed to sunlight.

State-based action — levies

The movement of waste across state and national borders has been recognised as a significant environmental and policy challenge. On 1 July 2019, the Queensland Department of Environment and Science (DES) introduced a waste levy aimed at reducing the amount of waste going to landfill, encouraging waste avoidance and increasing the capacity for resource recovery. The Commonwealth Department of Environment and Energy’s Compliance Plan 2019–23 includes as one of its five priorities a focus on detecting and disrupting illegal domestic and international trade in hazardous waste.

However, following the introduction of the waste levy, there has been an increased awareness of illegal dumping and unlicensed waste management operations. DES has nominated waste regulation, management and levy compliance as one of its key focus areas for 2020–21.

Regulating ‘energy from waste’

In recent years, there has been a spike in ‘energy from waste’ proposals, involving the thermal treatment of waste-derived materials for the recovery of energy. These emerging technologies seek to capitalise on the availability of relatively inexpensive fuel sources (ie, waste) while also generating electricity that can be used by businesses and communities. Although energy from waste is a vital piece of the waste management puzzle, it is also coming under greater scrutiny from regulators.

On 1 April 2021, the New South Wales EPA introduced a draft revised ‘Energy from Waste Policy’ for public comment. This policy proposes to tighten restrictions “for emissions including hydrogen fluoride, mercury, cadmium, thallium and heavy metals to meet and exceed the world’s best air quality standards. It also includes the implementation of ongoing reporting requirements from energy from waste operators and real-time emissions data to be made publicly available online.”

Queensland implemented a similar approach with its own Energy from Waste Policy in June 2020. The policy does not specifically aim to “incentivise or promote energy from waste”, but instead to ensure that the facilities in Queensland meet the technical, environmental and regulatory standards that best suit Queensland. The policy outlines a preference for industries that produce higher value commodities such as solid or liquid fuels from waste materials, over the production of electricity and heat, to align with the Queensland Government’s biofutures agenda.

These policies suggest that while the desire and support exist around innovative solutions for the processing of waste, strict compliance frameworks are required to regulate waste handling and processing facilities.

Resource recovery opportunities and developments

Governments at all levels have a responsibility to encourage the development of the resource recovery and recycling industry through appropriate regulation, incentives and utilisation of recycled products. Resource recovery exemptions are important instruments to ensure a safe ‘second life’ for waste and an opportunity for product design to capture waste material re-use. This is evidenced by the growing development and use by local governments of ‘greencrete’ — a product made available by a resource recovery exemption, allowing recovered glass sand (made from bottles and other recycled glass products) to be applied to land for pipe bedding, drainage or road making.

Similarly, the ‘end of waste’ framework in Queensland promotes resource recovery opportunities and aims to transform the perception of waste from being seen as waste to being valued as a resource. However, reliance on these end of waste codes is also conditional upon stringent statutory controls and standards relating to the chemical composition, testing and reporting of waste.

Regulators must therefore ensure that these stringent statutory controls and standards which are applied to waste that is earmarked for re-use do not limit the potential opportunities and prevent innovative initiatives for waste resource re-use, outside of the exemption terms. Given the broad environmental benefits that can be achieved from resource recovery, greater collaboration between government and industry is needed to expand the opportunities for resource recovery in Australia.

Regulation going forward

As the environmental movement grows and momentum for waste re-use initiatives increases, future projects involving the storage, handling and disposal of waste are highly likely to trigger some form of environmental regulation.

For this reason, it is critical that the legal requirements to operate any waste facility are well understood and complied with. Companies and individuals must also be mindful of their legal obligations when adopting environmentally friendly policies or seizing upon business opportunities for recycling and re-use.

*Kate Swain is an experienced Environment and Planning lawyer who advises clients across the energy and resources, government services, infrastructure and property development sectors. She advises across all facets of environmental and planning law with a particular focus on pollution, water licensing and approvals, native title and biodiversity.

**Sarah Hausler is a specialist planning and environment lawyer focusing on infrastructure, environment and strategic planning. Her expertise is complemented by her degrees in environmental science and urban and regional planning which complement her practical approach to the commercial and policy context in which her clients operate.

Image credit: ©stock.adobe.com/au/Ghen

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