Key developments

Last year saw a number of developments in the regulation of the Australian waste industry, both federally and amongst the states and territories. The waste industry has continued to respond throughout the year to policy, rule and market changes and drivers, and evolve accordingly.

Highlighted below are some of the key regulatory changes and significant case law that have impacted the waste industry in 2019.

Federal

  • The Australian Government announced its intention to ban the export of waste plastic, paper, glass and tyres following China's National Sword Policy, introduced in 2018. The export ban would be undertaken progressively commencing from 1 July 2020 and with all waste plastic, paper, glass and tyres to be completely phased out by 30 June 2022. The ban comes as part of a bid by the federal government to tackle the amount of plastic waste ending up in the world's oceans.
  • Federal and state/territory environment ministers signed off on the long-awaited Strategy for Nature, which aims to set a national framework for government, non-government and community action to strengthen the country's response to biodiversity decline and care for nature in different environments. There are three broad goals - to connect all Australians with nature, to care for nature in all its diversity, and to share and build knowledge - which are underpinned by twelve specific objectives. A few of these objectives, such as ensuring sustainable consumption and production, and taking urgent action regarding climate change and its effects on the environment, directly relate to reducing waste and improving resource efficiency.
  • The National Waste Policy Action Plan 2019 was released, which presents targets and actions to implement the 2018 National Waste Policy. These targets and actions will guide investment and national efforts to 2030 and beyond. The Action Plan also aims to address impediments to a circular economy for waste in Australia, and to support businesses and households in seeking to realise the full value of recyclable materials and work towards more sustainable resource value. National targets contained in the Action Plan include an 80% recovery rate of materials across all waste streams, 'significant increases' in government procurement of recyclable materials and halving the amount of organic waste sent to landfill.

New South Wales

  • The NSW EPA released its Asbestos Waste Strategy 2019-21, which proposes innovative measures to reduce illegal dumping and unsafe disposal, and seeks to promote lawful and appropriate disposal of asbestos waste. An important aspect of this strategy is the EPA's attempts to make the lawful disposal of asbestos waste cheaper for NSW householders by investigating the removal of the waste levy on separated, bonded and wrapped asbestos (for amounts of up to 250 kilograms).
  • The Department of Planning, Industry and Environment, including the NSW EPA, is leading the development of a 20-Year Waste Strategy. The Strategy aims to set a 20-year vision for reducing waste, driving sustainable recycling markets and identifying and improving the state and regional waste infrastructure network. The 20-Year Waste Strategy Discussion Paper is expected to be released for consultation in 2020 with a draft strategy to follow.
  • The decision in Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie [2019] NSWCCA 174 (Grafil) increased waste operator liability and changed the interpretation of 'asbestos waste.' The decision in Grafil overturned a 2018 decision of the NSW Land and Environment Court which raised the bar for EPA investigations and prosecutions. The Court of Criminal Appeal's decision has a range of implications for the State's waste industry , including an effective increase to consumer liability due to:
    • requiring a consumer to bear the onus of proving that resource recovery exemptions apply, because the consumer is seeking to avail itself of the exemption. This means that consumers will need to have confidence in the supply chain of material they are receiving, together with all the necessary documentation to prove? there is lawful authority to receive and use the material; and
    • requiring consumers to check whether any asbestos is present in a stockpile or load of waste. If so, then the entire load or stockpile is to be classified as 'asbestos waste.' Therefore, the proportion of asbestos to the volume of the load or stockpile is irrelevant.
  • The New South Wales Land and Environment case of Environment Protection Authority v Davis [2019] NSWLEC 79 was a timely reminder that company directors and other persons concerned in the management of a corporation are expected to exercise all due diligence to prevent their corporation's contravention of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act). Pursuant to section 169(1) of the POEO Act, the general manager in that case was convicted and fined for five offences of providing false or misleading information to the New South Wales Environment Protection Authority (NSW EPA) despite claiming that he had no knowledge that false information was being provided. As a result of the Court's decision, all persons concerned with the management of a company must be aware that they have a positive obligation to ensure that their company complies with its obligations under environmental law. For a detailed analysis of this case, please refer to the client alert issued by Baker McKenzie here.

Victoria

  • The Victorian Environment Protection Authority and the Department of Environment, Land, Water and Planning released the Proposed Environment Protection Regulations to simplify and support the state's new environmental protection laws. The proposed regulations introduce a clear, tiered waste classification system and provide further detail on the types of waste that will be considered 'industrial waste', 'priority waste' and 'reportable priority waste' as well as applicable waste codes. This new classification system is designed to reduce and simplify waste sampling and analysis processes. In addition, a new tool called a 'declaration of use' has also been introduced. This tool allows for self-assessment of low-risk industrial and priority waste (but not reportable priority waste) for re-use and recovery in certain circumstances. The proposed regulations are expected to come into force, along with the substantive provisions of the new Environment Protection Act, on 1 July 2020. For a detailed analysis on these new regulations, please refer to the client alert issued by Baker McKenzie here.
  • The Victorian Government's Environment and Planning Committee held an Inquiry into Recycling and Waste Management and released its Final Report in November 2019. The Committee made 33 findings and 46 recommendations that address a wide range of current recycling and waste management issues including:
    • the need to reduce waste generally, and thereby reduce landfill and stockpiling problems;
    • the importance of sorting recycling, particularly the separation of glass from other recyclable materials;
    • the importance of education in the community to manage recycling and waste; and
    • the complex governance arrangements within the different layers of government, and the potential for recycling and waste management to be designated an essential service.
  • Over 2019, the Victorian Government consulted on its proposed circular economy policy and action plan, which is expected to be released in the near future.
  • SKM Recycling Group went into receivership mid-year and stopped taking recycling from more than 30 councils, resulting in more than 180,000 tonnes a year being sent to landfill. In October, Cleanaway acquired the SKM business consisting of a network of five recycling sites, including three material recovery facilities, a transfer station in Victoria and a material recovery facility in Tasmania. The Victorian Government granted a $10 million loan to assist in the clean-up of dangerous stockpiles at one of the Victorian sites, Laverton North, an advanced plastic sorting facility.

Queensland

  • A waste levy was introduced on 1 July 2019. Waste disposed of in the levy zone, or waste that originates in the levy zone or interstate and is disposed of in the non-levy zone, will be liable for the levy. The levy aims to reduce the amount of waste going to landfill, encourage waste avoidance and provide a source of funding to enable better resource recovery practices. The levy, which starts at $75/tonne, is paid by landfill operators (local councils and private businesses) to the Queensland Government based on the amount of waste disposed of to landfill. Eligible organisations can apply for exemptions and discounts from the levy.

Expectations for 2020

The discussions surrounding the 'circular economy' and 'energy from waste' are expected to continue into 2020 as the waste industry continues to work towards solutions for managing waste more efficiently, sustainably and with minimal impact to the environment and communities. A number of proposals for new energy-to-waste developments have been announced (such as Cleanaway Waste Management's $500 million project in western Sydney). However, it will be interesting to see these projects are able to obtain community endorsement, noting that planning authorities have been prepared in the past to reject such projects in circumstances where there is community opposition (e.g., the NSW Independent Planning Commission, in rejecting the proposed Eastern Creek Energy from Waste Facility in 2018 on numerous grounds, found that the project was not in the public interest and took into account the community's concerns about the project).

The ban on export of waste plastic, paper, glass and tyres is a step forward; however the timetable envisaging a full phase out by 2022 is very ambitious. All state and territory governments will need to act diligently and effectively if the first phase is to be rolled out later this year on schedule. The hope is that government will have taken on board lessons learnt from the virtually overnight revocation in NSW of the Mixed Waste Organic Outputs 'MWOO' resource recovery order and exemption in 2018.

Australia will also hold its first national plastics summit in early March, which will aim to address the growing plastic waste problem. The summit aims to provide those attending with a wider understanding about the important of recycling strategies. Attendees will include leading retailers, industry representatives, State governments, local government associations, infrastructure companies, researchers and school children. As the first of its kind, it will be interesting to see what level of commitment will be provided by those involved in the summit to target phasing out the problematic and unnecessary plastics over the next five to ten years.

On the litigation front, environmental regulators are likely to continue to crack down on waste operators who fail to meet their licence conditions and obligations. 2020 has already seen two waste operators, in NSW, Minto Recycling Pty Ltd (a Bingo Industries subsidiary) and Paper Trade Processing (Aust) Pty Ltd being separately convicted and penalised of breaching their environmental protection licences. According to the NSW EPA, Minto Recycling was ordered to pay $90,000 to the Environmental Trust after pleading guilty to a charge of exceeding the amount of waste that it was permitted to receive in a 12-month period. NSW EPA reporting indicates Paper Trade was ordered to pay $37,000 in fines and approximately $8,000 in costs after being convicted on four charges of breaching its environment protection licence, relating to storage of waste, and one charge of failing to comply with a NSW EPA notice for information and records. Going into the new year, waste operators should continue to be diligent with meeting their licence conditions and obligations.

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