Refining the definition of Waste

By Mike Ritchie – Managing Director, MRA Consulting Group

Clients regularly ask MRA why they need a waste licence for an activity which on the face of it might not look like waste processing. Recent Land and Environment Court (LEC) and Court of Criminal Appeal (CCA) decisions have clarified the meaning of “waste” in NSW and it is important that people working in the sector understand exactly what the EPA, the legislation and Courts mean by the term.

Background

In May 2016 Justice Craig of the LEC considered the case of Terrace Earthmoving PL which had been charged with the commission of two offences against s143(1) of the Protection of the Environment Operations Act 1997 (NSW) (POEO), that prohibits the transport of waste to a place that cannot lawfully be used as a waste facility (for that waste).

The importance of the case is how the Judge, the Court of Criminal Appeal, and then the Judge again, interpreted the meaning of waste.

Leaving aside some of the detail relating to amendments to the Act (the EPA shifted the definition from within one section of the Act to the broader Dictionary of the whole Act) and different charge periods, I want to go to the definitions and interpretations in order to tell the story.

Definition

Under the latest version of the POEO Act:

“Waste includes:

  1. Any substance (whether solid, liquid or gaseous) that is discharged, emitted or deposited in the environment in such volume, consistency or manner as to cause an alteration in the environment, or
  2. Any discarded, rejected, unwanted, surplus or abandoned substance, or
  3. Any otherwise discarded, rejected, unwanted, surplus or abandoned substance intended for sale or for recycling, processing, recovery or purification by a separate operation from that which produced the substance, or
  4. Any processed, recycled, re-used, or recovered substance produced wholly or partly from waste that is applied to land, or used as fuel, but only in the circumstances prescribed by the regulations, or
  5. Any substance prescribed by the regulations to be waste.

A substance is not precluded from being waste for the purposes of this Act merely because it is or may be reprocessed, recycled, re-used or recovered.”

What is waste?

The CCA said, that in correctly applying the definition of waste it was necessary to consider “whether the owner of the material at the time transportation commenced, had a continuing use for the material”.

Most importantly for waste operators and transporters the Judge said “The meaning of the words “unwanted” and “surplus” in the definition of waste does not turn on any objective characteristic of the substance or material but require reference to the state of mind of the person who is the “owner” of the substance or material “when transportation was arranged”.

The CCA continued “The fact that the substance or material transported was “wanted” by the carrier (because that constitutes its business) or is wanted by the user of that substance or material at the destination to which it is transported, does NOT render that material something other than waste.”

Justice Craig in the LEC then said “whether a substance was “waste” for the purposes of s143 (4) required the Court to consider whether the substance being transported was unwanted or surplus by and to the owner of the waste immediately before it was transported.”

To put more meat on that particular bone here are some other quotes from Justice Craig:

  • A substance will remain waste even though it is intended to be sold, recycled, processed, recovered or purified by a separate operation from that which produced the substance”.
  • Where the material is unwanted in the hands of the ORIGINAL owner, it is waste and will remain waste until processed, recycled, reused or recovered.
  • The owner, whose state of mind is relevant to be considered, is the person who had the property in and exercised domain over the substance or material prior to the actions of the person who took possession for the ultimate purpose of removal from the site upon which the substance or materials originated.
  • What is clear beyond doubt is that the Court (CCA) dismissed as being of any relevance, the state of mind of the transporter of the substance or material.

For those of you who are thinking of processing material that could be waste or, of putting such material onto land, the LEC Judge had the following to say: “a substance that otherwise qualifies as waste … does not cease to be waste because it is intended to subject the waste to “recovery” of some substance by some separate operation. The structure of the definition makes apparent that only following the separate operation that results in recovery of some substance from what is otherwise waste, and that is then applied to land will, that substance (subject to the regulations), cease to be waste.

The Judge did not define what those “separate operations” might be and there is no definition in the Act.

What is a waste facility?

So, it is an offence if a person transports waste to a place that cannot lawfully be used as a waste facility, (for that waste).

A waste facility is defined as being “any premises used for the storage, treatment, reprocessing, sorting or disposal of waste (except as provided in the regulations)”.

The LEC states “the fact that the waste deposited at the site was subsequently put to another use by a further process, namely working, grading, compacting and levelling that material by use of equipment, did not detract either from its characteristic as waste at the time of deposition, nor from the use of the site as a waste facility”.

In summary, in NSW almost anything that is unwanted or surplus in the mind of the original owner is waste and remains waste until it is reprocessed in some substantial way (but the reprocessing activities that render it “non-waste” are yet to be defined). Only lawful waste facilities can receive waste.

If in doubt, ask.

For more information email mike@mraconsulting.com.au.