Impact of NSW Asbestos Waste Strategy on MRFs

Waste Management Review looks at the draft NSW Asbestos Waste Strategy and its impact on recycling and materials recovery facilities.

With construction projects rampant in Sydney, the waste industry is left to deal with the blowback.

The unfortunate situation is that asbestos, a naturally occurring mineral commonly found in areas of NSW and WA, is now being dug up. While asbestos has been banned by most Australian states and territories since the late 1980s, this did not include chrysotile asbestos (white asbestos), which remained in use until 2003. Its now an issue that affects one third of Australian houses, according to estimates from the Asbestos Safety and Eradication Agency. 

The main two types of asbestos are bonded and friable, with friable being any material that contains asbestos and is in powder form or can be crumbled, pulverised or reduced to powder by hand pressure when dry. Bonded is conversely any material that contains asbestos, other than friable asbestos material. 

Under the Protection of the Environment Operations (Waste) Regulation 2014 (POEO) in NSW, a person that is disposing of asbestos waste off the site at which it is generated must do so at a landfill site that can lawfully receive the waste. Penalties apply for corporations and individuals not covering specific depths of virgin excavated material at initial disposal, the end of each day’s operation and beneath the final surface of the landfill site. 

In late 2018, reforms were passed which increased penalties to $2 million for corporations and $500,000 for individuals who who illegally dispose, recycle or reuse asbestos waste.

Under the Contaminated Land Management Act, notification of asbestos contamination is required when friable asbestos is present in soil or on the land, or the level of asbestos is detected at screening levels above those specified in the National Environment Protection (Assessment of Site Contamination) Measure 1999 (NEPC 2013) (NEPM). 

These are the two common problems that wind up on the desk of Gavin Shapiro, Partner at Hones Lawyers. As an environment and planning lawyer, Gavin is faced with the issue of materials recovery facilities (MRF) and recyclers who have done their due diligence but through no fault of their own end up with trace amounts of asbestos in a stockpile or cross contamination. 

In other cases, landowners have clean soil imported onto their properties only to discover asbestos within and be given a clean-up notice by council or EPA. The clean-up costs range in the hundreds of thousands to millions to dispose and remediate, so they turn to Gavin for advice.

“Typically the demolition earthworks contractor has disappeared off the face of the earth. The first category of MRFs and recyclers we help analyse the process and look at Australian standards,” Gavin explains.

“In the second category, we look closely at contaminated land requirements and work with a waste consultant to analyse the material closely and determine what asbestos or material is in there and negotiate with the EPA on clean-up and finding means of remediation.” 

ADDRESSING THE ISSUES 

Gavin was hopeful that the two issues would be addressed in the NSW Asbestos Waste Strategy 2018-22, currently out for consultation, but to no avail. While he welcomes the strategy as a step in the right direction, he says the final version should address these problems. According to Gavin, having a clear strategy will help set the right policy direction, but the devil is in the detail.

“Where we have divergence in the legislation and regulations related to asbestos is the zero tolerance approach for microscopic amounts located in stockpile or soils. If you’re dealing with contaminated land the NEPM allows for what are deemed safe levels of asbestos within soil to remain in-situ.”

He says in the waste regulations there is a zero-tolerance approach, while in the contaminated land area it is risk-based, creating a divergence of practicality. 

“The absurd situation is say there is a stockpile of soil on site that came from offsite and was tested. If asbestos is found below NEPM levels, those criteria can dictate it is potentially safer to remain onsite and be intact, whereas under the laws and regulations that apply to waste that may be deemed asbestos waste which is illegal to bury onsite.” 

He says that under the POEO Act, you could be required to dig up the material and bury offsite which is more risky to human health than burying and capping it onsite.

STRATEGY SUMMARY

To reduce illegal dumping and unsafe disposal, the EPA released the draft strategy in October with a goal of making asbestos waste disposal easier, cheaper, increasing awareness and changing behaviour, closing loopholes and increasing transparency, disrupting unlawful business models and monitoring and evaluating progress. One of the reasons cited for putting together the strategy was a need to determine a baseline for lawful disposal which will be set in the first year of the strategy.

To make disposal of asbestos waste easier, the EPA proposes to explore options with councils and private providers such as providing asbestos disposal bags with skip bins and offering door-to-door pickup services. It also plans to fund the collection of household amounts of separated asbestos at sites other than landfills, including community recycling centres, while expanding facilities that receive asbestos waste to include waste storage and resource recovery facilities with appropriate safeguards. The EPA will also work with developers and infrastructure providers to achieve more efficient and appropriate asbestos waste management solutions.

To make asbestos waste cheaper, the EPA proposes to investigate removing the waste levy on separated asbestos material, and is considering options for setting landfill prices for asbestos waste. It also plans to work with SafeWork to consider amending the Waste Regulation to make environmental and workplace health and safety requirements more performance-based and cost-effective. 

Part of the EPA’s broader plan is a reform package as part of the Protection of the Environment Operations Legislation Amendment (Waste) Regulation 2018, which will come into effect at least 12 months after being passed in November 2018 to give the industry time to adjust.

The package includes increasing on-the-spot fines for illegally transporting or disposing of asbestos waste by tenfold. In addition, construction and demolition waste facilities will face tougher inspection and handling rules. Tighter inspection controls and constant video monitoring will be introduced. On the levy side of things, a 75 per cent discount for some types of C&D waste that meets specification for cover will be afforded.  

Gavin says that removing the levy for asbestos would be a good start as some rogue demolition contractors have exploited the law to hoist the material upon innocent landowners as purportedly clean soil. However, Gavin cautions against the issue of the levy still applying to mixed waste.

“The practicality of removing it only from asbestos itself but not providing levy relief for soil or C&D waste that contains asbestos will mean in practice there are a lot of projects where the cost of going through the separation activity may not be worthwhile as it could be if it were broadened to cover waste mixed with asbestos,” he says. 

“That being said I do understand the EPA can’t create a perverse incentive to mix asbestos with waste. It is a difficult and complex issue.” 

Gavin says that updating resource recovery orders and exceptions to allow for some allowances to use waste material onsite with testing procedures and sampling could be one way to improve compliance. 

The EPA also plans to work with local government and Heads of Asbestos Coordination Authorities (HACA) to educate people about proper asbestos waste management. According to the strategy, the government is also considering reforms to the C&D sector. Furthermore, new guidelines for recyclers will set benchmark requirements for inspecting, sorting and processing C&D waste. The end goal is to increase the quality of recycled construction waste and minimise the risk of it entering facilities and contaminating recovered resources. 

To close loopholes and increase transparency, EPA will use its RIDonline database to help it prioritise actions, regulation and enforcement, while understanding the size and location of issues and deterring people from unlawful activities. It will work with SafeWork to monitor and track asbestos waste. The EPA is also proposing to work closely with local government to strengthen development consent requirements. The strategy says developments should not proceed without confirming how they will identify, remove, manage and dispose of asbestos. 

Gavin says a move towards a risk-based approach from agencies would be welcomed, but at this stage he is unable to pass judgement given the lack of further clarity in the strategy on this.

In disrupting unlawful business models, the NSW Government will investigate amending legislation to make it a requirement for waste generators to pay the landfill or resource recovery facility directly. In the first instance, this change could be brought in for developments generating large quantities of waste. 

The government in the strategy argues it will strengthen the sentencing provision for asbestos by prescribing in regulation the method for the courts to determine the amount representing the monetary benefit gained from the illegal conduct. 

Asbestos affects an estimated one third of Australian households.

THE BURDEN OF PROOF 

From a law enforcement perspective, Gavin says the EPA’s powers of prosecution are adequate and can be severe when combined with a monetary benefit order. But the difficulty stands in proving an offence has taken place.  

“I think the EPA has all the powers it needs in terms of enforcement and investigation it’s more about a lack of visibility as to when.”

“It’s for them to be able to connect the dots between the source and where it gets dumped. 

“Frankly it’s extremely difficult for the EPA. Through no fault of their own, they are in a very difficult position. Connecting the dots between the construction industry and earthworks could be something looked at as part of the final strategy.” 

Finally, the strategy will monitor and evaluate work based on RIDonline data. The document sets proposed timelines for all the government’s actions based from immediate and ongoing actions to action in six months’ time. 

According to Tony Khoury, Executive Director of the Waste Contractors & Recyclers Association of NSW, removing the waste levy from separated and wrapped asbestos materials delivered to a lawful landfill will encourage proper separation of asbestos from other wastes at the point of generation.

“We all agree that asbestos poses a threat to public health and the environment. If the objective of the waste levy is to encourage diversion from landfill, why impose a levy on asbestos as it cannot be recycled? The safest option for the removal of asbestos from our environment is for the asbestos to be disposed of at a lawful landfill site,” Tony says.

“And if the EPA’s objective is to make the lawful disposal of asbestos cheaper, then there is no justification for a waste levy on the landfilling of asbestos.”

Tony says that WCRA challenges the proposal by the NSW EPA to set a landfill price for asbestos waste. 

“While we support the removal of the waste levy on the landfilling of asbestos, the operational price charged by the landfill is a matter for the landfill,” he says.

He says that any such price should take into account a range of commercial factors, including labour, machinery, cover, compaction, post-closure provisions and a rate of return. 

“The NSW Government doesn’t own the landfill and it is the commercial right of the landfill to set its own pricing on any incoming waste, whether it be asbestos or any other waste product.” 

When it comes to making waste generators paying the landfill or resource recovery facility directly, Tony says this could be brought in for developments generating large quantities of waste. 

Tony notes that the strategy is silent on the issue of an Asbestos Protocol – a methodology for the management of unexpected small quantities of asbestos found in construction and demolition waste.

“There is a potential for asbestos [to be present] in many parts of the waste and recycling sector. Other states like Queensland, Victoria and South Australia allow for a small tolerance. To date NSW hasn’t adopted this approach. 

“Industry has been discussing with EPA for the last eight or nine years the need for a protocol that the whole industry can work towards, so that if a small amount is detected in an existing stockpile of asbestos, we can follow the principles in the protocol to safely remove and dispose of the one or two small pieces of asbestos.” 

Tony says that the publication of this protocol has for most of 2018 seemed no closer now than it was in November 2011 when the first draft consultation document was circulated by the NSW EPA. He says it should be noted that a copy of this draft protocol has been on the EPA’s website since mid-2014. 

“This lack of progress is a concern to our members and has caused good investors to shy away from the NSW C&D recycling sector.”

This article was published in the February issue of Waste Management Review.