Insights / October 24th, 2016

Waste Not Want Not - Part 1

The SA EPA’s draft Environment Protection (Waste Reform) Amendment Bill 2016 (Waste Reform Bill) seeks to amend the Environment Protection Act 1993 (EP Act) to pave the way for various waste reform measures to be implemented through the introduction of new regulations, amendments to the Environment Protection (Waste to Resources) Policy 2010 (W2R Policy) and a raft of administrative changes.

Much of the detail is still to come and is not likely to be available until after the Waste Reform Bill has been enacted. Nevertheless, now is your opportunity to provide feedback on the framework proposed by the Waste Reform Bill.

In the first of our 4 part series we look at some of the key changes around what is NOT a waste and who bears the burden of proving that fact.

To be waste or not to be waste, that is the question

Declared not to be a waste:

The current definition of “waste” in the EP Act includes anything declared by regulations or an environment protection policy to be waste.

At present, the W2R Policy, which is an environment protection policy under the EP Act relating to the management and disposal of waste, contains a declaration as to what is considered not to be waste for the purposes of the definition of “waste” in the EP Act.

Clause 4 of the W2R Policy provides, in effect, that waste or material resulting from the treatment of waste ceases to be waste if it:

  • constitutes a product that meets specifications or standards published by the EPA (i.e. the standard for the production and use of waste derived fill (WDF Standard) and the standards for the production and use of waste derived soil enhancer and refuse derived fill); or
  • in the absence of a specification or standard, it constitutes a product that is ready and intended for imminent use without the need for further treatment to prevent any environmental harm that might result from such use.

Arguably, the EP Act as it currently stands does not permit an environment protection policy, such as the W2R Policy to declare what is not waste. This exact question has not been considered by the Courts. However, interestingly, the Environment, Resources and Development Court recently held that clause 4 of the W2R Policy, to the extent that it purports to make a declaration that material is a waste, is beyond the power of the EP Act. That judgment is currently being appealed and it remains to be seen whether that finding will be overturned.

Pursuant to the Waste Reform Bill, the EPA proposes an amendment to the definition of waste to expressly provide for regulations and environment protection policies to declare something to not be a waste. It may be that this amendment is sufficient to sustain a declaration of the type currently contained in clause 4 of the W2R Policy.

The proposed amendments to the W2R Policy will not be released for public consultation until after the Waste Reform Bill has been enacted. Accordingly, it is possible that the categories of what is declared not to be waste will be further amended. Further, the WDF Standard (being one of the standards published by the EPA for the purposes of clause 4) is currently under review and will not be released for some months yet.

Determined to be an approved recovered resource:

In addition to providing for an environment protection policy or regulations to declare something not to be waste, the Waste Reform Bill seeks to establish a new process which will allow a person to formally apply to the EPA for a declaration that a specified material constitutes an “approved recovered resource” and is, therefore, not a waste. Where a reuse proposal does not clearly fit within a standard or specification, a proponent still has the opportunity to make an application to the EPA for a determination. This will, at least in theory, provide industry with more certainty.

It is intended that new regulations will set out the criteria and process for making an application to the EPA for a declaration. How beneficial this new mechanism will prove for industry is yet to be determined and will depend heavily on how prescriptive and restrictive the regulations will be. We understand that pursuant to those regulations the EPA will likely seek to recover its costs in assessing applications by way of an application fee – presently estimated by the EPA to be in the thousands. The application fee alone could make the process of seeking a declaration prohibitive for many smaller industry participants.

Burden of proof:

Bill proposes to clarify s.139(3) of the EP Act to expressly provide that the burden of proving that a material is not a waste rests with the respondent. The fact that the EPA issues a complaint that a material is a waste will on its face constitute proof that it is so. This, when considered in the context of the waste reform measures as a whole, could have significant implications for industry.

Whilst the Waste Reform Bill goes some way towards addressing what is considered not to be waste, the extent to which the industry will have certainty in dealing with and reusing waste remains to be seen.

Cowell Clarke has significant experience in the waste field and is currently involved in making submissions in relation to the Waste Reform Bill. If you would like assistance with preparing a submission or would like one of our team to conduct an information session on the proposed changes please contact us.