NSW EPA releases C&D waste regulation reform package for comment

On 31 October 2017, the NSW Environment Protection Authority (EPA) released a suite of documents aimed at reforming the construction and demolition (C&D) waste industry. The documents come a year after consultation first opened on the EPA's proposed reforms to the C&D waste sector. They offer some compromises for industry and other stakeholders taking into consideration submission made during the 2016 consultation period. However, in many respects, the documents will place more onerous requirements on various parts of the C&D waste industry and, in doing so, increase costs and risks.

The documents released by the EPA include:

• a public consultation draft Protection of the Environment Operations Legislation Amendment (Waste) Regulation 2017 (Draft Regulation);
• an Explanatory Paper;
• a Consultation Report (on the 2016 round of consultation); and
• public consultation draft Standards for Managing Construction Waste in NSW (Draft Standards).

Aim of the C&D waste regulatory reform

The EPA says "These changes build on the 2014 reforms of the Protection of the Environment Operations (Waste) Regulation, by seeking to drive further resource recovery and address poor waste practices". The EPA is concerned that some C&D waste operators "have minimal environmental controls, poor processes and are not safely maximising recovery of resources from construction waste." In addition, there is ongoing concern within Government, industry and from the public around the transport of C&D waste from NSW to Queensland where it is cheaper to dispose rather than recover and reuse in NSW. The Draft Regulation and Draft Standards are designed to address these concerns.

Key changes proposed

The EPA received 32 written submissions from industry, government and the public in response to the 2016 Consultation Paper. To improve C&D waste industry process and maximise resource recovery, the key changes now proposed by the EPA through the Draft Regulation include:

• a requirement for C&D Waste Facilities to comply with the Draft Standards. A "Construction and Demolition Waste Facility" is a facility that receives more than 6,000 tonnes of construction waste in any 12 month period (within or from the metropolitan levy area);
• formally abolishing the proximity principle (which previously prevented the transport of waste by road more than 150km from its origin);
• banning exhuming of waste from NSW landfills except in specified circumstances. This aims to prevent waste from being exhumed, a rebate claimed for landfill diversion, and then transported to Queensland for disposal;
• video monitoring systems at C&D Waste Facilities. Records are to be kept for three years (this was reduced following submissions on the 2016 Consultation Paper which proposed storage for six years);
• changes to some "scheduled activities" under Schedule 1 of the POEO Act to clarify whether certain facilities do or do not require an EPL. The changes relate to the scheduled activities of: Energy recovery, resource recovery, waste processing (non-thermal treatment) and waste storage; and
• expanding the matters the EPA can take into account in determining whether a person is a "fit and proper person" for the purpose of holding an EPL to include whether the person has, within the previous three years, failed to pay any fee or other amount payable under the environment protection legislation, or has paid any such fee or amount late.

Draft Standards

In the Draft Standards, the EPA proposes five Standards for Managing Construction Waste in NSW:

1. Implement the inspection requirements during the operations at the C&D Waste Facility in accordance with Standard 1. This includes a primary weighbridge visual inspection and a subsequent "tip and spread" inspection. Personnel must have successfully completed a nationally accredited course in asbestos awareness and bonded asbestos removal.
2. Implement the sorting requirements during operations at the C&D waste facility in accordance with Standard 2. This requires sorting into individual waste categories for the purpose of further recovery or processing, transport to a waste facility or disposal.
3. Ensure that construction waste that has been inspected and sorted in accordance with these standards is not mixed with other waste at the C&D waste facility in accordance with Standard 3.
4. Implement the waste storage requirements for operations at the C&D waste facility in accordance with Standard 4. That is, each individual waste type must be stored in a separate, clearly labelled, storage area.
5. Ensure that construction waste is not transported from the C&D waste facility unless it complies with Standard 5. That is, C&D waste will not be able to be transported from a C&D Waste Facility unless it has been inspected, sorted and stored in accordance with the Draft Standards.

The proposed Standards will have legal force through the Draft Regulation (once made). Part 8A of the Draft Regulation proposes that it will be made a condition of an EPL for a C&D Waste Facility that the facility must comply with the Draft Standards.

Timing

The changes originally released for consultation in October 2016 were proposed to commence in March 2017. The EPA does not now provide timing for commencement of the waste reform package. However, we can assume that, barring any submissions that significantly alter the EPA's thinking, commencement is likely to now be early to mid-2018.

For operators of facilities that did not will require an EPL as a result of the proposed regulatory changes, cl 47 of the Protection of the Environment Operations (General) Regulation 2009 prescribes a period of nine months to submit an EPL application.

The Explanatory Paper states that facilities will have a transitional period of six months to comply with the Draft Standards.

Next steps

C&D waste industry operators should review their internal process to ensure compliance with the Draft Regulation and Draft Standards.

The Draft Regulation and Draft Standards are open for submissions until 5pm on 12 December 2017.

Please get in contact with us if you would like to discuss how the proposed changes may impact your business or if you would like assistance preparing a submission to the EPA.