NSW waste reform package takes effect

On Friday 16 November 2018, the much-anticipated reforms to the regulation of the Construction and Demolition (C&D) waste industry in NSW took effect. Following a two-year consultation period led by the NSW Environment Protection Authority (EPA), the reforms introduce more rules and higher standards for waste operators, while also introducing some new exemptions. Interestingly, the "proximity principle", which restricts the transportation of waste outside NSW, has been retained despite its having been flagged for removal during the consultation period.

Key changes

The reforms have been made largely by way of amendments to the Protection of the Environment Operations Legislation Amendment (Waste) Regulation 2014, as well as to the Protection of the Environment Operations Act 1979 (the POEO Act).

Overall, the reforms establish more rules and higher standards for waste operators in the C&D waste industry. These include:

• a requirement for C&D waste facilities to comply with the "Standards for managing construction waste in NSW” prepared by the EPA;
• a ban on the exhuming of waste from NSW landfills except in specified circumstances;
• where the EPA requires video monitoring systems to be installed at waste facilities, the occupier can now also be required to:
  • ensure the monitoring system is maintained;
  • ensure that the video monitoring records are kept for at least 3 years (previously this was only 1 year); and
  • stop any activities taking place under the environmental protection licence when the video monitoring system is not fully operation;
• increased penalty notice amounts for asbestos waste offences; and
• expanding the matters that 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 or has been late in paying any fee or other amount payable under the environmental protection legislation.

The reforms also provide clarification on the regulation of certain aspects of the industry and as well as some concessions for operators. 

The Standards

From 15 May 2019, most C&D operators will be required to comply with the "Standards for Managing Construction Waste in NSW” by imposing it as a condition on any environmental protection licence holder (EPL holder). Any failure to comply with the Standards constitutes a breach of an operator's EPL and section 64 of the POEO and a maximum penalty of $1,000,000 for corporations.

The Standards will apply to any waste facilities other than landfills which are located in:

• the "metropolitan levy area” and receive 6,000 tonnes or more "construction waste” in any 12-month period; or
• the "regional levy area” and receive 6,000 tonnes or more construction waste in any 12-month period from the ”metropolitan levy area”.

The Standards are separated into five categories: inspection requirements, sorting requirements, mixing of waste, waste storage requirements and transport requirements.

The main requirements for operators arising from the Standards are:

• implement a two-stage inspection process with a focus on ensuring asbestos waste and other contaminants do not enter the facility;      
• implement sorting and waste storage requirements to improve the quality of recovered resources and avoid cross-contamination of materials;
• ensure that construction waste is only transported from the facility if it has been handled in accordance with the Standards on-site; and
• ensure that all staff managing, supervising or undertaking tasks required by the Standards have been appropriately trained (including training in asbestos awareness).

The Proximity Principle remains

In the draft version of the Regulation, it was proposed to remove from the Regulations the "Proximity Principle”, which restricts the transport of waste by road more than 150km from its origin. However this has been retained in the final version. The EPA referred to there being an absence of a national solution to address the adverse impacts caused by long-distance transport of waste disposal in its explanation for retaining the Principle.

What does this mean for the C&D waste industry?

Operators will need to review their practices and procedures to ensure that current operations are compliant with the new rules and standards, in particular:

• for applicable facilities, urgently undertake a review of current practices to ensure that the Standards to ensure that current practices are compliant prior to 15 May 2019; 
• ensure video monitoring systems are well-maintained so that activities are not disrupted as a result of any failure; and 
• ensure any fees payable under environment protection legislation are up to date and are paid promptly going forward. 

Please get in contact with us if you would like to discuss how the reforms may impact your business.