Outcomes of the independent review into the NSW resource recovery framework

In brief - What the recommendations for amendments to the NSW waste and resource recovery framework, with the aim of improving circular economy outcomes, may mean for the waste industry  

The recently published report on the Independent Review of the NSW Resource Recovery Framework provides 22 recommendations directed towards improving "the delivery of circular economy outcomes and potential for innovation, as well as ensure growth of the resource recovery industry without compromising human health and the environment". In this article, we provide our high level comments on the Independent Review from a legal perspective.

In November 2021, the NSW Environment Protection Authority (EPA) commissioned an independent review of the state's resource recovery framework. The review was commissioned to examine the existing NSW waste and resource recovery framework and to provide recommendations for improvement. 

On 30 September 2022, Dr Cathy Wilkinson published her report on the Independent Review of the NSW Resource Recovery Framework. There is a clear focus on amending the existing framework to improve circular economy outcomes. The catalyst for this improvement came from the NSW Government's NSW Waste and Sustainable Materials Strategy 2041, released in 2021, which outlined a framework for moving to a circular economy over the next 20 years.

The following four thematic areas were used to group 22 recommendations:

1. Improved administration and decision making.

2. The definition of waste and enhancing the regulatory framework.

3. Enabling high quality materials to facilitate circularity.

4. Improving approaches to known and merging contaminants. 

The Independent Review did not cover the entire resource recovery framework. For example, the waste levy, which encourages material to be recovered rather than sent to landfill, is to be considered separately in 2023 as part of its 5-year review. 

Here are our six high level comments on the Independent Review:

1. Improved trust in resource recovery order and exemption framework

A number of the recommendations appear to be driven by the erosion of the waste industry's trust in the resource recovery order and exemption framework as a result of the overnight revocation of the mixed waste organic outputs order. The proposed changes, which are directed to providing transparency and additional consultation to the public, will go some way toward improving the relationship.

2. Publishing of resource recovery orders

The Independent Review reported tension between stakeholders as to whether site specific resource recovery orders should be publicly available. Publishing all resource recovery orders and exemptions would encourage resources to be recovered as competitors would be able to see how other sites are operating and potentially operate in the same way to increase recovery. However, those with currently confidential resource recovery orders would prefer to maintain that competitive advantage and avoid a 'free-rider effect'.

As resource recovery orders are legally enforceable documents, similar to development consents and Environment Protection Licences which are publicly available instruments, it is unclear why they would not be published on the EPA's public register (apart from commercially sensitive information). An application under the Government Information (Public Access) Act 2009 (NSW) may provide an avenue for these documents to be released if amendments are not made to make the orders publicly available.

3. Addressing issues with making applications for orders and exemptions

The Independent Review has identified the difficulties that industry experiences when making applications for orders and exemptions. Lessons could be learned from the NSW planning portal, which has been drastically improved in recent years to increase accessibility and transparency to the public for development applications. However, in our experience it still has its own teething problems. 

4. No recommendation for merit review appeals for resource recovery orders  

Applications for Environment Protection Licences need to be determined within 60 days otherwise a merit appeal may be made to the NSW Land and Environment Court. This is not the case for applications for resource recovery orders and has been the subject of criticism. There is no specific recommendation for a merit review appeal right to be created which would (if given) provide recyclers with an avenue to pursue a determination of their application within a certain time frame instead of waiting, for some of our clients, over a year. 

5. EPA investigates waste classification scheme

The EPA is investigating the establishment of a scheme for accredited waste assessors to assist with waste classification. A reformed scheme would potentially assist with reducing the cost to businesses associated with false waste classification reports. It may also assist consumers. We have experienced a number of situations where waste operators fall foul of the resource recovery exemption regime in that they have received material either on the promise of it being 'clean fill' or with paperwork that was deficient.

6. Asbestos contamination in waste

The Independent Review reported that stakeholders were concerned about the zero-tolerance approach to the presence of asbestos within other waste types which presently leads to all of the impacted waste being classified as asbestos waste. This was the consequence of the Court of Criminal Appeal's findings in Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie [2019] NSWCCA 174. 

Recommendations have been made that are directed to reviewing how asbestos contamination in waste and recovered materials can be improved. 

Timing of possible changes

Given there are multiple parts of the recommendations which integrate across different areas, including the review of the waste levy and the potential need for legislative amendments to be made, we expect it will be some time before we see the full suite of changes implemented. 

The EPA is currently considering the Independent Review.