Arie van der Ley
under the supervision of
From 1 November 2014 new regulations will replace all general and specific exemptions under the 2005 Regulations with Resource Recovery Orders (for suppliers) and Resource Recovery Exemptions (for users). The aim is to make exemptions and requirements less ambiguous, particularly in relation to supplier versus user obligations. Waste operators relying on resource recovery exemptions should be aware of the changes to the regulatory framework.
Currently, the 2005 Regulations, (clauses 51 and 51A) provide for the creation of 'resource recovery exemptions'. These are granted by the EPA where certain waste is reused by its application to land or use as a fuel, in a manner that is bona-fide and does not cause harm to the environment.
Exemptions allow the use of the waste in this manner to occur outside of certain parts of the waste regulatory framework, including the requirements to hold an environment protection licence or pay a levy. General exemptions are issued for commonly recovered material, which could be relied upon by anyone. Specific exemptions can be applied for where no general exemption exists.
Eligible resource recovery waste continues to include any processed, recycled, re-used or recovered waste substance that is produced wholly or partly from waste and is, or is intended to be, applied to the land or used as fuel. Resource recovery waste also includes any waste that is used, or intended to be used, in connection with a process of thermal treatment.
RESOURCE RECOVERY ORDERS – FOR SUPPLIERS
Resource Recovery Orders, created by the EPA, may impose requirements on a specified person (or class of persons) in relation to the generation, processing or supply of resource recovery waste. The conditions may relate to waste specifications, record keeping, reporting and other operational requirements. The conditions must be met in order for the supplied waste to be applied to land, used as fuel or in connection with thermal treatment.
Specified persons affected by an order will be notified in writing. In all other cases orders will be published in the Gazette.
The penalty for not complying with a Resource Recovery Order is up to $44,000 for a corporation and $22,000 for an individual.
RESOURCE RECOVERY EXEMPTIONS – FOR USERS
Resource Recovery Exemptions apply to the user of exempt waste and will include conditions which must be met when or before the waste is applied or used. Similar to Orders, conditions may relate to record keeping, report and other requirements.
If the conditions are met, the user may be exempt from certain provisions of the POEO Act and the 2014 Regulations including:
- The requirement to hold an Environment Protection Licence for a scheduled development work, a premises based activity or a non- premises based activity as required by ss47-49 of the Act
- Contributions under section 88 of the Act
- Schedule 1 of the Act, either in total or as they apply to a particular type of activity
- Tracking of certain waste as required by Part 4 of the 2014 Regulations
- Reporting requirements for non-paying landfill sites and for landfill sites outside the regulated area under clause 109 of the 2014 Regulations
- The requirement to notify the EPA when a new landfill site is established where no licence is required under clause 110 of the 2014 Regulations
- The requirement that residue waste must not be applied to land use for growing vegetation under clause 114 of the Regulation
- The offence of land pollution under section 142A of the Act, in relation to application to land of waste that is produced wholly or partly from restricted soil waste or waste tyres.
The separation of the supplier and user obligations aims to reduce the ambiguity that often arose in the single exemptions issued under the 2005 Regulations. The new regulations provide targeted mechanisms to allow for transparency and clarity of persons involved in the recovery of waste. There appears to be no intention to subject current suppliers or users to additional or more arduous requirements.
REPORTING AND RECORD KEEPING
Records may be required to be kept under resource recovery exemptions or orders for at least 6 years, and may be subject to inspection. A person may also be required to provide test results relating to waste to which an exemption or orders applies. The penalty for non-compliance in relation to these reporting and record keeping requirements is up to $22,000 for a corporation and $11,000 for an individual.
CHANGES EASE UNDERSTANDING
Current and future waste operators that deal with resource recovery should be aware of the changed format of the regulatory exemptions. For current operators, there will be no significant practical impact to their day to day operations, reporting requirements and reliance on current exemptions. All existing general exemptions, which contained a table setting out to whom they applied (for example, generator, processor and consumer) and to what effect, will be replaced by new Resource Recovery Orders and Exemptions.
The changed format will make it easier for suppliers and users to understand their respective obligations. The new regulations in relation to the exemptions should make it easier for future waste operators to access and enter the resource recovery market.
Further reading about the 12 areas of staged change to the NSW protection of the Environment Operations Waste Regulations:
1. Introduction of the Proximity Principle: limiting waste transportation distance
Disclaimer: The information contained in this e-alert/update is not advice and should not be relied upon as legal advice. Hunt & Hunt recommends that if you have a matter that is legal, or has legal implications, you consult with your legal adviser.