Minimum C&D waste standards in review

The NSW Environment Protection Authority has released a draft set of minimum standards for the management of construction and demolition waste in the state. Waste Management Review investigates the implications.

In 2014, the NSW Government introduced its Protection of the Environment Operations (Waste) Regulation, in a bid to address what it referred to as poor waste practices.

In spite of these reforms, Environmental Protection Authorty (EPA NSW) argued two years later that based on multiple investigations, industry feedback and data analysis, there were still a range of ongoing issues in the construction and demolition (C&D) waste sector.

As a result, the EPA released a consultation paper in 2016 which laid out a set of minimum standards for the management of construction and demolition waste in NSW.

In these minimum standards, EPA NSW argued the C&D sector could be returning large volumes of recovered materials into the economy.

EPA NSW noted “poor processes” pose a risk to the community and environment from contaminated products and can lead to less resource recovery.

Some of the issues highlighted in the sector include poor inspection and screening processes, which are failing to remove contaminants from mixed C&D waste, such as skip bins, as loads are processed and sent for re-use. Others include what the EPA NSW refers to as the negligent handling of waste, including asbestos, at recycling facilities leading to contamination. Sending unprocessed mixed loads of waste off site for disposal are also identified as an issue. Furthermore, the EPA NSW believes non-compliant production of recovered fines is occurring.

For these reasons, the agency proposed a number of reforms. These reforms will apply to C&D facilities that receive in excess of 6000 tonnes of C&D waste per year from the metropolitan levy area.

After consulting with the waste sector during 2017, the EPA NSW released a draft regulation. The proposed reforms cover a wide scope of areas and if approved will be amended in 2018.

For the recycling side of C&D, the agency proposed minimum standards for the sorting, recovery and responsible handling of C&D waste. Among these measures is a requirement for an inspection of each load at weighbridge by an appropriately trained person while the waste is still in the vehicle. These trained inspectors will determine if contaminants or asbestos is in the waste, while following written procedures.

Under the proposal, loads of construction waste found to contain asbestos at the tip and spread area, must be immediately re-loaded and rejected from the facility. Rejected loads will be recorded in a register and accepted loads will be sorted into specific categories. All C&D waste will also need to undergo a specific sorting process. The proposals look to prohibit mixed sorted waste from being sent off site. All unpermitted waste types will be required to be transported offsite within a business day.

For C&D transportation, stricter penalties apply for non-compliance with asbestos transport and disposal. The EPA NSW plans to remove the proximity principle, which was introduced in 2014 to snuff out operators transporting waste to avoid landfil levies.

Increased penalties will also apply to those who transport waste unsafely, in addition to requirements for transporters not to remix loads that have been sorted at a waste facility.

For the landfill industry, the agency proposed introducing a new recovered fines specification to allow fines to be used as daily cover at landfills and a levy deduction for this use.

New specifications will be developed to ensure these fines are classified as general solid waste, are soil-like in appearance and derived from processing C&D waste. Landfill occupiers will also be penalised for exhuming waste. NSW landfill operators will not be able to claim a waste levy rebate on exhumed waste sent to interstate facilities.

Furthermore, the agency will now make waste facilities, claiming a transported landfill levy waste deduction provide evidence they are using the waste for its stated purpose lawfully.

It comes as the EPA NSW works to prevent levy-liable waste facilities from claiming deductions on the levy for transporting waste to another facility, despite having the capacity to process it themselves. It is concerned this exception is being misused, as the waste deductions are intended to support recycling by relieving landfill operators of the levy when they can send materials on for further processing.

Gavin Shapiro, special counsel at global law firm Norton Rose Fulbright, believes the minimum standards are a prescriptive direction for the environmental regulator.

“These reforms will give the EPA the legal power to make compliance with the minimum standards a condition of every C&D facility’s environment protection license,” Gavin says.

“If you breach the document you will be committing an offence under the law.”

When looking at reducing asbestos in the waste stream, Gavin says the minimum standards should reduce these instances, but concedes that the controls required are only as good as those implementing them.

He says it should reign in poor performers by ensuring they are unable to send waste off site to cancel out the levy liability. However, the risk is that the standards will become subjective rather than objective, he adds.

“I think the ones who will get hit with a levy will be businesses who don’t have good records and are reliant on sub-contractors,” Gavin explains.

However, an EPA NSW spokesperson says it is of the view that there is no reason the reforms should lead to an increase in recoverable resources being disposed of in landfills.

“Landfill operators that currently hold a licence under clause 39 of Schedule 1 of the POEO Act permitting waste disposal by application to land that wish to recover resources to be sent off site for further processing may do so by applying for a resource recovery licence under clause 34 of Schedule 1 and organising their operations/premises accordingly,” they said.

For landfillers, the reforms, including the prohibition on transport of waste from landfills, means that materials may end up being buried, rather than sent on to another facility processing, Gavin believes.

“The unintended consequences are that tens of thousands of tonnes of material that could have been recovered legitimately at landfills could be prohibited,” Gavin says.

He says a one-size-fits-all approach is concerning, as different C&D facilities and landfills will have their own development consent and license conditions and operational constraints.

“My view is that the EPA should make an allowance to allow each site to have standards varied by agreement with the EPA, where there’s a genuine case.”

Tony Khoury, Executive Director Waste Contractors and Recyclers Association (WCRA), in his submission reminds the EPA that a large majority of the operators in the waste sector already comply with all the legislative requirements and operate to a standard of best practice.

“Lifting operating standards is regarded as a good initiative, however a measure of common sense needs to be applied in order to keep industry economically competitive in NSW,” Tony says.

“Equally, appropriate resourcing must be provided to the regulator to ensure the enforcement of any new legislative changes.

“We understand that the issue of resourcing is a matter for the government to consider.”

Tony says WCRA is happy to continue to volunteer its members as part of a working group to consider these regulatory changes.

Some of the points the association raises in regard to inspection requirements are that working C&D yards are dynamic in nature, with stockpiles moved around to tailor to commercial operations and market demand. WRCA’s submission notes training for personnel is already commonplace.

The suggestions also argue it would be helpful if the EPA NSW funded a training video detailing the expectations from the regulator about how to inspect waste and what to do with unacceptable waste.

Industry supports the sorting and requirements of C&D waste to be classified into individual waste types, while at the same time questioning how it will be enforced by the agency.

The submission also calls for clearer standards between C&D and commercial and industrial waste to allow for the inspections to be properly managed.

WCRA’s view of the waste storage requirements is that it is reasonable to expect an unexpected contaminant or unwanted material in C&D waste from time to time and it is unreasonable to expect a facility to remove the unpermitted waste type each day. It calls for a longer time frame to be considered.

The submission notes industry generally supports the transport requirements laid out and calls for further confirmation of some of the transport restrictions.

Colin Sweet, Chief Executive Officer Australian Landfill Owners Association (ALOA), says it’s only fair landfill owners are subject to the same rules. In this regard, ALOA agrees minimum standards at licensed C&D facilities are required for the inspecting, sorting, recovering and responsible handling of waste.

One of ALOA’s biggest concerns is that only a 50 per cent concession will be provided on a landfill levy for the use of recovered fines meeting specifications to be used as daily cover at landfills. ALOA believes that no levy should be applied to the recovered fines to make it an economically viable concession.

“Unfortunately, the NSW EPA gave us the impression there would be a zero levy on recovered fines and now it’s 50 per cent,” he says.

“We’ve told them this would result in virtually no savings at all. It is a large financial imposition for landfill operators to bring in cover material and pay the levy. This would result in the material going into landfill as waste.”

In its minimum standards, the EPA points out that it has become aware that a number of licensed landfills are exhuming waste from their landfills. The risk of leaving this waste exposed can expose asbestos and hazardous materials, along with landfill gas release, fire and odours. As a result, it will be an offence for a licensed waste disposal facility operator to exhume waste. For ALOA, it’s concerning that landfill operators could be digging up waste and transporting it Queensland in order to claim landfill levy deductions intended to support recycling.

“There are obvious occupational health and safety issues with this. In principle, exhuming waste from landfills should be discouraged, especially if it’s due to the levy in NSW versus the absence of a levy in Queensland,” Colin says.

Colin says the repercussions are an influx of unnecessary trucks on the road to Queensland.

ALOA agrees that preventing the sending mixed loads of waste offsite for disposal is an appropriate initiative, as laid out in the minimum standards. However, it’s concerned it could disincentivise some rural operators with multiple operations on single properties from having to take out an additional license in order to recycle the materials.

Overall, Colin says ALOA agrees with many of the standards in principle, but believes the regulations are only as good as the regulator’s efforts to enforce them.

When asked about whether the EPA would be provided with additional resources to police its standards, the EPA NSW spokesperson said:

“As an effective and efficient regulator, the NSW EPA prioritises and allocates its resources to achieve good environmental outcomes and fulfil its responsibilities.

“This will include the enforcement of the proposed regulatory changes and standards.”

In regard to ALOA’s concern of a 50 per cent deduction for recovered fines, the EPA NSW spokesperson said the initial consultation paper on the proposed reforms did not set a rate for the concessional contribution for recovered fines.

“External economic analysis has since been conducted to determine a rate that would incentivise use of recovered fines as daily cover, resulting in the proposed 50 per cent concessional contribution rate,” they said.

Turning to the repeal of the proximity principle and reducing interstate waste transport, the EPA NSW said it is working closely with its interstate counterparts to develop a national approach to waste regulation.

“The introduction of a meaningful waste levy in Queensland would see the immediate cessation of most waste travelling from NSW to Queensland,” the spokesperson said.

“The purpose of the proposed changes is to increase the quality and quantity of recovered construction waste in NSW by diverting valuable resources from landfill back into the productive economy, and ensure safe re-use.

“The EPA expects the changes will support industry to improve current practices and achieve these objectives.”

Once the proposed changes are in place, the spokesperson said the EPA NSW intends to provide guidance to support C&D operators to meet their obligations.

EPA NSW also addressed the concern of one business day potentially being insufficient for C&D businesses to remove contaminants.

It reiterated its objective of the standards to minimise and control the risk of asbestos and other contaminants affecting waste-derived products.

“The requirement to move all unpermitted waste types to a designated waste storage area, then transport that waste to a facility that can lawfully accept it within one business day of receipt at the facility, is intended to support this objective.

“The EPA released the draft regulation and standards for comment to capture stakeholder feedback and is currently reviewing submissions received through the public comment period which closed in December 2017.

“If feedback indicates that a one-business-day time period is insufficient, the EPA will consider amendments in the context of the overall objectives of the reforms.”

The spokesperson said once the standards are in place, a transitional period of six months will apply to existing facilities.

The NSW EPA has prepared a draft regulation that takes into consideration feedback from industry. You can view it here.