One year on from the NSW EPA’s ban on mixed waste organic material, Waste Management Review speaks with key industry stakeholders about resource recovery exemptions.
When the NSW EPA banned the restricted use of mixed waste organic material (MWOO) in October 2018, industry reaction was swift.
The ban’s 24-hour notice period was deemed particularly controversial, with council planning and tender processes instantly altered.
The EPA’s apparent lack of transparency was also criticised, with claims industry had little access to the EPA’s internal research, or knowledge of the decision-making process.
While a Technical Advisory Committee Report was prepared in April 2018, it was withheld from the public for five months. Then Environment Minister Gabrielle Upton said withholding the report illustrated poor judgement on the EPA’s behalf.
The report’s eventual release did little to alleviate industry’s concerns. Speaking with Waste Management Review in October, an industry stakeholder, who wished to remain anonymous, said the report lacks reference to data that supports its baseline scientific assertions.
“While the report makes reference to multiple studies, those studies aren’t cited and industry hasn’t been granted access to the EPA’s research,” the stakeholder said.
Additionally, the stakeholder said industry engagement in the lead up to the decision was poor, with no formal consultation period or submissions process.
The decision was also deemed controversial due to the NSW Government consistently advising that the state had a shortage of alternative waste treatment facilities (AWT).
In a joint letter to Ms Upton, the Waste Management Association of Australia, the Australian Organics Recycling Industry Association, Waste Contractors Association of NSW, Australian Council of Recycling and the Australian Organics Recycling Association said several existing long-term AWT contracts had been compromised by the decision.
RED BIN REPORT
MWOO, which predominantly consists of household waste organics and has traditionally been used as compost, was banned for use on agricultural land, plantation forests and in mining rehabilitation. It is worth noting the ban excludes land application of compost derived from source separated FOGO.
According to a 2006 NSW Environment and Conservation Department Report, titled Recycled Organics in Mine Site Rehabilitation and authored by Georgina Kelly, MWOO improves soil structure, moisture retention and soil aeration. The report also asserts that MWOO is a rich nutrient source that facilitates rapid micro flora and fauna regrowth.
On agricultural land the material serves a similar function, acting as a soil amendment, topsoil substitute and fertiliser.
Despite two decades of widespread use, the EPA’s Technical Advisory Committee Report argued that MWOO had limited agricultural or soil benefits.
“It is clear the current use of MWOO on broadacre agricultural land, with application rates restricted to 10 tonnes per hectare, could not be classified as beneficial reuse in terms of improved crop production or beneficial effects on soil chemical or physical quality,” the report reads.
“Higher and/or repeat application rates are needed for the material to have any significant effects on crop growth and quality and on soil chemical and physical quality.”
The report also suggests that higher MWOO application rates run the risk of greater soil contamination by metals, persistent organic chemicals and physical contaminants.
The report lists one site visit, conducted 22 September 2017, where visible waste streams including nappies, plastic and clothing were found in high proportions – the specific site and/or operator is not named.
According to the anonymous stakeholder, further research should have been conducted, including more site visits and sustained onsite testing.
In laboratory and glasshouse experiments referenced by the report, the effect of MWOO, and specifically ground glass, was examined on earthworm avoidance, rhizobium nodulation and clover and carrot growth.
Ground glass is commonly found in MWOO as processing employs grinding to meet physical contaminant limits.
While no adverse effects were observed for earthworm behaviour, rhizobium nodulation and clover growth, glass particles were seen to adhere to the surface of carrot tubers, at an application rate equivalent to 25 tonnes per hectare.
“While this application rate is above current 10 tonnes per hectare agricultural guidelines, if regulations were to change (to allow the beneficial effects of MWOO to be realised) it is possible that more MWOO would be applied, making this a real concern,” the report reads.
“The fact that glass is permissible in MWOO used on agricultural land requires that this issue be either further considered experimentally, or the risk avoided by more effective glass removal.”
The stakeholder questioned the carrot experiment’s inclusion in the report, given MWOO was already banned around crop harvesting. They also raised concerns over the anonymity of the technical advisory committee, and said industry had a right to know who was consulted on the decision.
When asked what the EPA could do to ease industry concerns, the stakeholder said that at a minimum, the EPA should revoke the material’s ban in mining rehabilitation.
They added that the EPA’s ability to change regulatory standards with a stroke of a pen had caused significant hesitation around private sector investments.
“If I had money to invest in resource recovery, I wouldn’t be spending it in NSW,” the stakeholder said.
On 16 October, the NSW EPA opened public consultation on the future use of MWOO and a proposed $6.5 million AWT transition package.
In an associated position statement, the EPA reiterated its original MWOO position and stated further research had been undertaken to assess future controls.
Consultation closes 28 November.
RESOURCE RECOVERY EXEMPTIONS
The use of MWOO has been restricted since 2010, including processing and distribution regulations and limits on its use for urban and domestic purposes. Specifically, EPA regulations restrict the material’s use near crops harvested below the soil surface.
Within those restrictions however was a Resource Recovery Exemption Order allowed MWOO in some land applications under specific conditions, based on its then status as beneficial or fit-for-purpose.
In a statement released at the time, then EPA Acting Chair Anissa Levy said the MWOO exemption was made on the basis that the material provided a beneficial reuse solution for waste. The revocation was made in 2018 because the material no longer met those requirements, she said.
Resource Recovery Exemption Orders are made under clauses 91 and 92 of the 2014 Protection of the Environment Operations (Waste) Regulation Act.
According to Ross Fox, accredited specialist in planning and environmental law and Principal Lawyer Fishburn Watson O’Brien, the act was constructed to ensure orders and exemptions can be made, changed and revoked easily. He says while this has benefits, namely the ability to act swiftly in the face of environmental hazards, it also lends itself to overreach.
“What is arguably one of the act’s strengths is also one of its greatest weaknesses. It’s not clear why there is no specific testing process set out in the act, but it’s certainly a matter of concern for my clients and the industry generally,” Ross says.
He adds that there is no transparent framework for the revocation process when an order or exemption involves the waste industry.
“The sector is also concerned that decisions can be made without public access to the information the EPA has, and without the opportunity to raise concerns,” he says.
While the legislative framework for Resource Recovery Orders and Exemptions hasn’t changed significantly over the past 10 years, Ross says current conversation around the issue are a sign of a maturing waste industry.
He adds that while in some cases there may be cause to revoke or amend exemptions, the EPA should be required to establish, and in some cases publicise, their argument for revocation.
“Those who are operating pursuant to an order are entitled to a fair process, and a clear path to be followed by all parties to minimise the impact of that revocation to the extent that it’s possible.”
Mirroring the view of the anonymous stakeholder, Ross suggests the ease in which Resource Recovery Exemptions can be revoked has created a high degree of risk for investors.
“Operators are thinking: why should I invest hundreds of thousands of dollars in a piece of equipment that can produce material up to today’s specifications, when Resource Recovery Exemption legislation allows those specifications to be changed tomorrow?” he says.
“If the degree of risk is too great then it will discourage investment in resource recovery, which will have a negative impact on NSW meeting its resource recovery targets.”
FLOW ON EFFECTS
Christopher Malan, ELB Equipment Managing Director, says the MWOO ban has had a negative effect on organic diversion rates, and increased the amount of material sent to landfill.
“In addition to the direct effects felt by NSW recyclers engaged in mixed waste organics recycling, processors from other states have expressed displeasure over the likelihood of similar measures in their state or territory,” Christopher says.
“This has created uncertainty in the segment and slowed investment in the sector.”
Christopher says that while ELB is committed to organics recycling, the MWOO issue far exceeds the capabilities of efficient processing.
“Given the breadth of the issue caused by the removal of the exemption relates to the source of the waste rather than the recycling methodology or output product, there is little that we have been able to offer from a technical perspective to assist the industry,” he says.
Despite this, Christopher is optimistic and says the NSW Government, EPA and local councils should work together to address the problem.
“All parties can agree that recyclable resources, such as organics, should not be going to landfill,” he says.
“It is our hope that a review of organic waste handling assists in eliminating organic waste sent to landfill.”
Rose Read, National Waste and Recycling Industry Council CEO, says the MWOO ban has closed markets for five operating mechanical biological treatment facilities in NSW.
“Collectively, these facilities produce in excess of 150,000 tonnes of mixed waste derived organics per year. So far, the NSW EPA has provided landfill levy exemptions for these facilities,” she adds.
Furthermore, Rose says the MWOO ban has created uncertainty and confusion within both the processing industry and users of processed organics.
“It is critical that clear specifications are urgently agreed upon by regulators, processors and the final end users of the material on what is acceptable for the agriculture, forestry and site rehabilitation markets,” she says.
“These specifications should be based on best available science. Without this clarity, industry cannot develop infrastructure and technology to meet the user’s needs, and the state government will not be able to meet its recycling targets.”
According to Rose, industry is asking for an amended Mixed Waste Resource Recovery Order to be reinstated, that clearly defines outputs and applications.
“To deliver on these outputs, industry will need financial assistance to upgrade these facilities to deliver the required resource recovery outcomes,” Rose says.
“Industry will also need to transition these assets in the medium to long term, so they can continue to provide the desired resource recovery outcomes and market specifications for NSW.”
Rose says industry is also requesting that the NSW EPA insert a formal process within its waste regulations that ensures current and future Resource Recovery Orders and Exemptions cannot be amended or revoked without timely consultation and a detailed assessment with all relevant stakeholders.
Charlie Emery, Australian Organics Recycling Association Director and NSW Chair, urged similar action in a submission to the NSW Environment Minister, addressing the state’s proposed 20-year waste and resource recovery strategy.
In the submission, Charlie called for the creation and enforcement of consistent regulatory standards for organics processing.
“Waste cannot always be a waste. At some point after beneficial processing it must become a resource,” the submission reads.
This article was published in the November 2019 issue of Waste Management Review.