Waste and the re-use of waste-derived materials in Western Australia: Making the most of the opportunity

27 August 2019

Waste management is a complex and multi-dimensional issue that touches everyone in different ways – from individuals, companies and governments, to society as a whole – and presents both risks and opportunities. Finding the right balance of policy and legislative regulation for each separate method or implication of waste management requires an assessment of many competing interests. The broader environmental good, position in the waste management hierarchy, localised environmental and health concerns (such as contamination), business/economic opportunities and the desirability of clear, risk-based regulatory schemes are all relevant.

No one can deny that waste is a big issue, or the wave of general sentiment that ‘more needs to be done’. However it is not surprising that there has been no quick fix given the breadth and complexities of the concerns and interests involved. As with so many problems, we are likely to see lasting change come about faster if the solution is at least partly market driven. It goes without saying that solutions need to effectively and appropriately manage environmental and health concerns, but they also need to be workable and economic if we are to expect business to pursue them.

One area of waste management that presents a significant opportunity for business, and is acknowledged by the WA State Government to be in need of legislative reform, is the re-use of waste-derived materials. The Department of Water and Environmental Regulation (DWER) released an Issues Paper in June on a legislative framework for waste-derived materials – ‘Waste not, want not: valuing waste as a resource’1– and there are still a few days to provide submissions on the legislative framework that will work best for WA .

Waste is such a big issue, where do we start?

The framework for regulating and managing WA’s waste is largely found in three pieces of legislation – Environmental Protection Act 1986 (WA) (EP Act); Waste Avoidance and Resource Recovery Act 2007 (WA) (WARR Act); and Waste Avoidance and Resource Recovery Levy Act 2007 (WA) – and their regulations. Waste is defined very broadly in these Acts.

The nationally supported waste hierarchy guides the management of waste. Management options are ranked in terms of general environmental desirability; being avoidance, reuse, recycling, recovery of energy, treatment, containment and disposal (in that order). Practical implementation of any one of these options requires its own assessment of specific issues and competing interests, and legislation to support and regulate it.

Waste is not just an environmental issue. Nor is it just a matter for local governments. It is a big issue for business, both in terms of cost and opportunity.

What is waste?

For Western Australian businesses, whether materials come within the legal definition of “waste”2 can have serious regulatory and cost implications.

The WA Court of Appeal’s 2017 Eclipse Resources decision3 confirmed a broad and inclusive meaning of “waste” for the purposes of the EP Act and WARR Act. The term was found to include:

…anything left over or superfluous, as well as any matter, whether useful ie, serving some purpose or a practical use, or useless, which is gotten rid of into the environment (subject to any contrary intention appearing).4

Significantly, whether material has the character of being unwanted or excess is to be determined by reference to the person who is the source of the material. Classification of material as waste is not influenced by what the recipient wants or intends to do with it, or whether it is useful or valuable to the recipient or society more broadly.5

What are the regulatory implications?

Premises on which a business generates, stores, processes or buries waste may be classified as a ‘prescribed premises’ under the EP Act,6 potentially triggering obligations to obtain an environmental licence and pay a landfill levy. An unexpectedly broad range of owners and operators found themselves subject to (or at risk of being found subject to) these regulatory requirements after Eclipse Resources, including property developers using clean fill and uncontaminated fill in standard earthwork activities.

One purpose of the waste landfill levy is to create a financial incentive to reduce or eliminate the volume or extent of waste created at its source, in accordance with the waste hierarchy. However the existing legislative regime, as interpreted in Eclipse Resource, has the potential to pervert this intent by discouraging the re-use of ‘waste’, as businesses face attracting additional regulation (in environmental licensing) and the cost-impost of the waste levy.

The Environmental Protection Regulations 1987 (WA) have since been amended to allow for the use of clean fill and uncontaminated fill that meets specified environmental and health thresholds after testing, without the need for a landfill premises licence or payment of a levy. However the 2018 amendments are limited and do not allow for the re-use of waste that does not meet the definition of clean fill or which exceeds the “uncontaminated fill” thresholds, even with case by case approval. The thresholds are intentionally conservative.

All of this raises a broader question regarding the re-use of waste-derived materials and the ultimate goal of a circular economy. According to a 2016 WA State Government media statement, WA generates three million tonnes of construction and demolition waste each year and sends two million tonnes to landfill.7 Clearly this is a valuable resource that presents significant opportunity for re-use.

Re-use of waste-derived materials: An opportunity

It is generally acknowledged8 that the current WA legislative framework for waste creates a level of uncertainty for industry that is discouraging re-use of waste derived materials and contrary to the circular economy approach.9 WA legislation does not set up a positive system allowing for re-use as some other Australian jurisdictions do, such as resource recovery exemptions or risk-based assessment and approval of waste-derived materials.

DWER’s Issues Paper speaks to just this issue. The WA Government is looking to develop a legislative framework for waste-derived materials, to encourage re-use within an environmentally responsible framework. The Issues Paper outlines some legislative approaches that have been taken in other Australian jurisdictions and seeks public comment on what will work best for Western Australia.

The Issues Paper provides a summary of three different approaches taken to the issue, in NSW, South Australia and Queensland. In brief:

  • New South Wales – a new framework of resource recovery orders and resources recovery exemptions, issued under the Protection of the Environment Operations (Waste) Regulation 2014 (NSW), was enacted in November 2014. EPA-issued exemptions identify the regulatory provisions which a consumer (user) of a specific kind of “resource recovery waste” will be exempt from, if specified conditions of use are complied with. For waste to be a “resource recovery waste” there must also be a corresponding resource recovery order, specifying conditions (chemical makeup, testing etc) which producers/processors must comply with for that type of waste;
  • South Australia – the framework is still being developed but includes a number of different approaches:
    • the Environment Protection (Waste to Resource) Policy 2010 provides that materials will not constitute “waste” under the Environment Protection Act 1993 (SA) if the product:
      • meets a published or approved standard/specification; or
      • where no standard has been published, the product is “ready and intended for imminent use without the need for further treatment to prevent any environmental harm that might result from such use”; and
    • in 2017, the definition of “waste” in the Act was amended to exclude anything that is declared to be an “approved recovered resource” under the Act or declared not to be a waste by a regulation or environment protection policy.

Three standards have been published, including one for waste derived fill. They are lengthy documents containing conditions, procedures, when approvals are required, chemical substance criteria etc. A much clearer/shorter draft Waste Derived Fill Specification was released in 2012 but it remains the subject of further consultation and does not currently apply. The regulations underpinning the 2017 amendments are still being developed; and

  • Queensland – an end of waste framework was enacted in the Waste Reduction and Recycling Act 2011 (Qld) in November 2016. The definition of waste explicitly excludes an ‘end of waste resource’ that is managed in accordance with End of Waste codes (EOW codes) or End of Waste approvals (EOW approvals). A number of EOW codes have been issued under the Act in relation to specific materials. Codes state when that ‘waste’ becomes a ‘resource’ and any conditions for its use. Where there is no EOW code relating to a type of waste, an EOW approval may be issued on a trial basis.

This is an important issue for WA. Although there are pilot projects ongoing in this space (including projects re-using materials in roads such as the Roads to Reuse Pilot Project), a clear legislated framework is necessary to encourage opportunities for projects to be led by the private sector. Costs associated with the necessary testing has often been prohibitive from a business perspective and reliance on inflexible codes has led to difficulties that have discouraged business take-up of opportunities. These issues will need to be addressed.

The proposed framework in WA needs to carefully consider and manage potential environmental concerns and ensure materials are safe for the specific use. However these important concerns need to be balanced with the need for a clear, workable and economic framework recognising the overall environmental benefit offered by safe re-use over landfill.

Businesses involved or interested in the re-use of waste-derived materials have the opportunity to provide input on the proposed regulatory regime, with comments to be received by 5pm on 4 September 2019.

If you require any advice regarding these matters, or waste regulation and environmental law compliance more generally, please don’t hesitate to reach out to a member of our Planning and Environment team.

This article was written by Lucy Shea, Partner and Charlotte Griffin, Law Graduate.

Lucy Shea

P: +61 8 6559 6611

E: lshea@hwle.com.au

1 https://www.der.wa.gov.au/images/documents/our-work/consultation/Issues%20paper%20-%20Waste%20not,%20want%20not.pdf
2 See section 3 of the EP Act and the WARR Act.
3 Eclipse Resources Pty Ltd v The Minister for Environment [No 2] [2017] WASCA 90, confirmed the decision in Eclipse Resources Pty Ltd v The State of Western Australia [No 4] [2016] WASC 62. Leave to appeal to the High Court was refused.
4 Eclipse Resources [No 2], at [161].
5 Eclipse Resources [No 4], at [560].
6 Environmental Protection Regulations 1987 (WA), Schedule 1.
7 https://www.mediastatements.wa.gov.au/Pages/Barnett/2016/03/10m-for-councils-to-recycle-construction-waste.aspx
8 Including by the WA Government, see DWER Issues Paper at Page 1 (https://www.der.wa.gov.au/images/documents/our-work/consultation/Issues%20paper%20-%20Waste%20not,%20want%20not.pdf).
9 https://www.der.wa.gov.au/images/documents/our-work/consultation/Issues%20paper%20-%20Waste%20not,%20want%20not.pdf

Subscribe to HWL Ebsworth Publications and Events

HWL Ebsworth regularly publishes articles and newsletters to keep our clients up to date on the latest legal developments and what this means for your business.

To receive these updates via email, please complete the subscription form and indicate which areas of law you would like to receive information on.

Contact us