By Mike Ritchie, MRA Consulting Group
The NSW Court of Criminal Appeal (CCA) has handed down a decision which affects all waste/recycling operators in NSW. The lawyers will spend days explaining the entrails of the decision but here is an idiot’s practical guide to the decision:
- Definition of Waste – The Protection of the Environment Operations Act 1997 (POEO Act) definition was completely upheld by the CCA. In short form – any discarded, rejected, unwanted, surplus or abandoned substance or any substance that is discharged, emitted or deposited in the environment in such a manner as to cause an alteration in the environment or any processed, recycled, reused or recovered substance produced from waste that is applied to land or used as fuel – it is waste. There are other parts to the definition but practically, this will do. As Gavin Shapiro said: If it walks, talks and quacks like a duck, the CCA says it’s a duck. If it looks like waste even if it is recycling, it is waste. (There are currently no “End of Waste” rules in NSW. There should be.)
- Stockpiles – are application to land as far as the POEO Act is concerned. It doesn’t matter how long waste is intended to be stockpiled for – even temporary stockpiles are application to land. It needs approval.
- Storage – includes temporary stockpiles even if it is pending transfer to another place. The purpose of the storage is irrelevant to whether you breach the POEO Act or not. It needs approval.
- Onus of Proof – You, not the EPA, bear the onus of proof that your activities (use of waste) are lawful. That includes Orders and Exemptions.
- Asbestos – Any waste that contains asbestos is “Asbestos waste” and must be treated as such. It does not depend on how much asbestos is in the waste. (This has always been so.)
In short the CCA endorsed all of the EPA interpretations of the POEO Act.
While there will be frustrations about how these interpretations are applied in practice (justified), at least the CCA has given much needed clarity on the rules. (The lower court decision would have given us a dog’s breakfast.)
So make sure your EPA licence and Council development consents are in order.
In respect of waste/recyclables: If in doubt don’t receive it, don’t stockpile it and don’t apply it to land. Get advice first.
We as an industry need to advocate for “End of Waste” rules so that recycled products, at some point, cease to be waste under the POEO Act. For now, they remain waste. We also need to work with the EPA to develop common-sense asbestos protocols so that we can do our recycling and waste management jobs.
MRA has studied the legislation and developed appropriate risk-based compliance methodologies. If your organisation is interested in ensuring compliance with the POEO Act, please contact us at firstname.lastname@example.org.
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