In brief - While 2021 has been interrupted by the pandemic, there have been a number of events this year which will likely impact the NSW waste industry in 2022, including how criminal matters are prosecuted, where investment in energy from waste facilities is directed, and the likely results of the looming independent review of the Resource Recovery Framework.
A snapshot of the key 2021 events impacting the waste industry is below:
Two cases from the NSW Land and Environment Court relating to waste offences are worthy of note.
Some will remember the media frenzy in 2017 relating to the illegal dumping of waste material at a property in Spencer. Since then, the NSW EPA commenced criminal proceedings against Mr Sam Abbas for causing 21,990 tonnes of building waste to be brought onto a property adjacent to the Hawkesbury River predominantly in a flood zone.
The matter has now come to an end with Mr Abbas pleading guilty to three offences in contravention of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act), namely:
land pollution (section 142A(1))
transporting waste to an unauthorised location (section 143(1)), and
unlawful use of a place as a waste facility (section 144(1)).
As all three offences were temporally and conceptually connected, the NSW Land and Environment Court applied the totality principle to order a $100,000 penalty and payment of some $80,000 for the prosecutor's costs, and the investigation costs.
The NSW EPA commenced criminal proceedings against ACE Demolition and Excavation Pty Ltd and its sole director, Mr Sami Allam, alleging offences under the 'false and misleading information about waste' provision, as well as the executive liability provision of the POEO Act.
In the course of the NSW EPA's investigations, Mr Allam's mobile phone was seized during the execution of a search warrant. The NSW EPA then issued Mr Allam a notice to provide information and records under section 193 of the POEO Act, specifically seeking the passcode to his phone so that it could be unlocked and data extracted. Under compulsion, the passcode was provided to the NSW EPA. The NSW EPA then served evidence in the criminal proceedings which included data extracted from the mobile phone.
In an interlocutory set of proceedings, Mr Allam sought an advance evidentiary ruling that certain evidence served by the NSW EPA was inadmissible. However, the Court refused to make the order sought by Mr Allam relying on Ku-ring-gai Council v Chia (No 4)  NSWLEC 75 to find that while the information obtained under the response to the section 193 notice might be inadmissible, it may then be used for an investigative purpose and that further information gathered is not rendered inadmissible. This is because of the clear words in section 212(5) of the POEO Act rendering that further information not inadmissible.
This case serves as a reminder of the broad investigative powers of the NSW EPA to obtain information and records from waste operators, including from personal devices such as mobile phones and computers.
Development in planning for Energy from Waste
This year, the NSW waste industry has also received further policy guidance on the future of energy from waste projects which will direct investment and infrastructure in this area of the sector.
The NSW Government's Energy from Waste Infrastructure Plan released in September 2021 identifies three key principles to guide the strategic planning needs for energy from waste projects.
The Plan requires that energy from waste in NSW must:
Improve certainty to communities and industry around acceptable locations and facilities.
Adhere to the precautionary principle where there is a greater risk of harm to human health due to proximity to high population areas (now and in the future), and in areas where there are regular exceedances of air quality standards from existing sources.
Maximise efficiencies in infrastructure, waste management, innovation, and energy recovery.
The Plan also sets out four priority infrastructure areas where energy recovery facilities must be located being:
West Lithgow Precinct.
Parkes Special Activation Precinct.
Richmond Valley Regional Jobs Precinct.
Southern Goulburn Mulwaree Precinct.
The exception to the above restriction is that energy from waste projects can operate at facilities that use waste, or waste derived feedstock to replace less environmentally sound fuels thermally treated at the site. The energy produced from the waste is also to be used to predominantly power the industrial and manufacturing processes on site, rather than exporting that energy to the grid.
While the Plan says the NSW Government is supportive of energy from waste where it is strategically located, the Plan curtails the locations where energy from waste facilities can operate. This appears to be based on community expectations as to where the acceptable locations for these types of facilities are.
Unless there is a drastic change in the policy, investment is likely to be focused in the four priority areas in the near future. If proven to be a safe and reliable way to manage waste, perhaps additional areas will be added to the list of acceptable locations.
What will 2022 bring for the NSW waste industry?
In 2022 we expect to see continued growth in the waste management industry as additional funding is made available by the Australian and NSW Governments, and further resources are directed towards creating a circular economy and diverting waste from landfill.
However, the growth of the waste industry is, as always, impacted by regulation.
In that regard, the outcome of the independent review into the Resource Recovery Framework is expected to become available next year. It is presently proposed that the independent review will consider the definition of waste, which has been the subject of significant court decisions over the previous years, as well as waste classifications. The resource recovery order and exemption regime are also expected to be reviewed, noting that a number of waste facilities have been or are currently being subject to audits looking into their compliance with specific resource recovery orders. Therefore changes to the way resource recovery facilities presently operate may be introduced.
Following the EPA's successful prosecution in the Windsor Local Court for two offences relating to land pollution, which resulted in more than $200,000 in penalties being ordered, additional prosecutions can be expected in the Local Court. While proceedings could be commenced in the NSW Land and Environment Court, which has a higher jurisdictional limit to penalise offenders, there are benefits to running prosecutions in the Local Court for prosecutors, especially where significant penalties are issued which regulatory authorities may take advantage of.
Finally, with the pandemic restrictions easing, it would be no surprise for site inspections to be carried out by regulatory authorities such as the EPA more frequently as we all adjust to what will be the new normal.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2022.