Circular Economy Part 2: Are there any gaps in current definitions of waste? – Waste Management

Resource avoidance, minimization and recovery issues are now priority topics for governments at all levels across Australia, and there is general support for pursuing circularity as a way to improve sustainability. .

In first part of the series, we looked at waste policy aspirations and new waste laws being created across Australia. In this overview, the second in our two-part series, we reflect on the concept of “waste” and its regulation, and explain why it is important for the law to provide a a clear path for a material to lose its “waste” status.

What is waste?

Waste is generally understood as “materials that are no longer needed and are discarded” or “anything left over or superfluous”. This reflects a traditionally linear model of consumption – “take-do-throw away” – where “waste” describes something at the end of its life.

The problem, however, given the growing push towards circularity, is that “end of life” has lost (or at least is losing) its status in the waste lifecycle. Because in a true circular economy, nothing would ever reach “end of life” status.

Thus, the meaning of “waste” requires further consideration. For example, is it clear when something becomes waste? Can waste lose its status and if so, how? Is something waste if it is a “leftover” for one person, but a “resource” for another?

How is waste regulated in Australia?

Waste is regulated by both common law (eg nuisance, negligence and trespass) and statutory law in Australia, and all levels of government are affected. For instance:

  • the Commonwealth has enacted legislation to implement international agreements and, more recently, to promote efficient waste management and encourage a circular waste economy;

  • states regulate waste through regulatory regimes relating to environmental protection (and to a lesser extent urban planning), and have recently introduced waste-specific laws, such as Victoria’s Circular Economy (Waste Reduction and Recycling) Act 2021 (vic) (Circular Economy Law); and

  • local governments are generally responsible for waste collection and transfer services to municipal constituents (although this is often contracted out to the private sector) and, in some cases, the provision of landfill facilities.

It should be noted that the “new waste laws” enacted by various states in recent years are generally complementary, rather than reformatory, to existing laws. This means that the material regulation of waste remains mainly in the domain of other laws, such as the Environmental Protection Act 2017(vic) (EP Act) and the Environmental Protection Operations Act 1997 (New South Wales) (POEO Law).

These laws generally prohibit littering, pollution, contamination and/or dumping of wastes, and impose waste management obligations that apply to those involved in the production, processing, transportation and disposal of waste. disposal, with stricter obligations applicable to more hazardous types of waste. waste. Failure to comply may result in criminal liability and significant penalties may be imposed.

Main challenges of the concept of waste

It is becoming increasingly clear that those who engage in resource recovery activities encounter gaps and barriers to regulatory compliance, and this raises the question of whether our laws help or hinder the journey towards circularity.

These problems stem in part from the fact that “waste” is a broad concept and most laws take a “once a waste, always a waste” approach – for example, by expressly confirming that something can be waste despite the fact that they can be reused, recycled or sold. Queensland is a notable exception to this. Even there, the mechanism of evolution of a waste from waste to resource under the Waste Reduction and Recycling Act 2011 (Qld) is not absolute and depends on the conditions met, often by multiple parties, in the waste resource supply chain.

Thus, most current laws suggest, somewhat irrationally, that in a circular economy, everything will be a waste – having been at one time, and for someone, a surplus, despite its usefulness elsewhere.

Courts have repeatedly grappled with this issue and sought to recognize that at some point the qualification of “waste” may be lost. For instance:

  • in Environmental Protection Authority v Terrace Earthmoving Pty Ltd[2013] NSWCCA 180, the NSW Court of Appeal held that if an owner has no continuing use for a particular material, but the material may have a subsequent use, the material should be considered “waste” until it is applied to a new use; and

  • in Eclipse Resources Pty Ltd v State of Western Australia (2016) WASC 62, the Supreme Court of Western Australia held that the “obvious concern of the legislature to advance the recycling and reuse of waste” implies that a material will only remain “waste” when it is not is of no use.

These cases suggest that the perspective of the owner of the waste will be an important factor in determining its status, and on this issue the Supreme Court of Victoria has sought to clarify that it is not the owner subjective view of the material that is relevant, but how that material would be characterized when considered objectively from the owner’s point of view.1

Clear as mud, right?

Consequences

This uncertainty has several implications, for example:

  • careful consideration should be given to the particular material and the context in which it is created in order to determine whether it is “waste”,2 and if so, what type of waste;

  • once something is considered ‘waste’, a prudent approach is to assume that the waste status continues to apply, as being wrong could result in significant exposure to liability; and

  • a resource that is a “waste” will be subject to more onerous regulation (including with respect to storage, transport, receipt and disposal) than a resource that is substitutable, but not a “waste” – a position that conflicts with the waste hierarchy.

Another emerging issue is that the more onerous obligations for certain types of (usually hazardous) waste tend to lack flexibility and are not always aligned with occupational health and safety requirements, hampering the ability of the rapidly developing resource recovery industry to innovate for better results.

A better way?

It is clear that we need to move to a system that better recognizes the potential for reuse and recycling within the framework of waste. An important part of this is a clear pathway for ‘waste’ to lose its waste status, which would provide much-needed certainty and remove unnecessary deterrence for those seeking to accelerate the development of resource recovery in Australia.

No doubt there are mechanisms already in place that can help. For example, certain regulatory instruments (such as a ‘statement of use’ in Victoria and an ‘end of waste’ code in Queensland) could be useful where available, and an extension of storage rights may be considered pending the identification of opportunities for recycling or reuse. But more is needed.

In New South Wales, for example, efforts have been made to facilitate the reuse of waste through the Resource Recovery Framework, which allows some waste to be reused in beneficial ways. However, following the long Grafil pursuit,3 the framework has been criticized for its tendency to prioritize environmental protection goals over circular economy outcomes. To address the perceived rigidity of the framework, an independent review is currently underway to examine options for reforming the framework so that it better balances the risks and potential benefits of resource recovery. An important objective of the review is to create new opportunities for the reuse of waste in the circular economy by establishing concrete ways to remove the definition of waste for certain materials.

At a time when the world is focused on the environmental and financial cost of waste, it is clear that attention to traditional waste assessments and definitions is essential to facilitating a faster transition to a true circular economy.

Footnotes

1 Dasma Environmental Pty td v Environmental Protection Authority [2021] VSC 798, to [68].

2 See Environmental Protection Authority v Grafil Pty Ltd; Environmental Protection Authority v Mackenzie
[2019] NSWCCA 174, [117]; Environmental Protection Authority v Terrace Earthmoving Pty Ltd [2013] NSWCCA 180, [39]; Shannongrove Pty Ltd v Environmental Protection Authority [2013] NSWCCA 179, [41]
.

3 See Environmental Protection Authority v Grafil Pty Ltd; Environmental Protection Authority v Mackenzie
[2018] NSWLEC 99; Environmental Protection Authority v Grafil Pty Ltd; Environmental Protection Authority v Mackenzie (No 3) [2020] NSWLEC 90.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.





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