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4.2 Waste management and offences

4.2.1 Overview

Waste management is important in order to:

• Reduce the environmental impact of dumping waste, and
• As a means of recovering resources and reducing the production of waste.

This Fact Sheet explains the legal framework in NSW for waste management, which includes:

• Waste avoidance strategies;
• Pollution licencing of waste facilities;
• Waste offences; and
• Development control over new waste facilities.

4.2.2 Waste avoidance and resource recovery strategies

The Waste Avoidance Act sets out the priorities and methods by which NSW will reduce its waste generation and improve its resource recovery from waste.1

The Environment Minister is ultimately responsible for administering the Waste Avoidance Act.2

4.2.2.1 NSW Waste strategy

Under the Waste Avoidance Act, the Director-General of DECCW (Director-General) must develop a waste strategy which includes targets for waste reduction, resource recovery and the diversion of waste from landfill disposal.3

The Director-General must report to the Environment Minister every 2 years on the volumes of waste avoided, produced, recycled or re-used, and how those volumes compare with the targets in the current waste strategy.4

The Director-General must develop a new waste strategy at least every 5 years.5

The Director-General can request a local council to provide reasons for not complying with the objectives of the current waste strategy.6

Waste Avoidance and Resource Recovery Strategy 2007

NSW's first waste strategy was the NSW Waste Avoidance and Resource Recovery Strategy 2003. This has now been superseded by the Waste Avoidance and Resource Recovery Strategy 2007.

The current 2007 strategy7 aims to meet the following targets by 2014 (based on 2000 levels):

• An increase in recycling of municipal waste from 26% to 66%;
• Increased recycling of commercial and industrial waste from 28% to 63%, and
• Increased recycling of construction and demolition waste from 65% to 76%.

4.2.3 Pollution licences for waste facilities

4.2.3.1 Scheduled waste facilities

Most waste facilities will require a pollution licence from the EPA.

If the waste facility falls within the definition of 'waste facilities' or 'waste activities' in Schedule 1 of the POEO Act, then it is a 'scheduled premises' and requires a pollution licence.8

Waste facilities or activities listed in Schedule 1 include:

• Storage or disposal of hazardous waste, industrial waste or liquid waste;
• Waste storage, transfer, separating or processing facilities;
• Waste incineration facilities; and
• Landfill sites with the Sydney metropolitan area or in environmentally sensitive areas.

The EPA can impose special conditions on a pollution licence concerning waste, such as:

• Requiring the licence holder to report on the collection, storage and handling of waste at the facility;9
• Specifying the times during which, and the routes along which, waste can be transported to the facility;10 and
• Requiring the licence holder to submit a closure plan in relation to the premises to which the licence applies.11

For more information on pollution licencing, see Fact Sheet 4.1 on Air, Water and Noise Pollution.

4.2.3.2 Non-scheduled waste facilities

Waste facilities (or waste activities) which do not fall within the definition of 'scheduled premises' of Schedule 1 of the POEO Act (eg small landfill operations) are called "non-scheduled activities".

These types of waste facilities do not require a pollution licence. They are regulated by local councils, unless the facility is operated by a public authority (in which case the EPA is responsible for it).13

Unlicenced landfill must give details to the EPA

However, the regulations require an occupier of an unlicenced landfill site to give the EPA their details, including the location of their landfill site, and their name and address, within 30 days after being established.14

4.2.4 Waste offences

The POEO Act contains a range of offences relating to waste.

4.2.4.1 Serious waste offences

It is an offence to willfully or negligently dispose (dump, abandon, discharge) of waste in a manner that harms or is likely to harm the environment without lawful authority (eg a pollution licence).15

This is a Tier 1 offence (most serious) for which the maximum penalties are $5 million for a corporation and $1 million and/or 7 years imprisonment for an individual.16

4.2.4.2 Mid-range waste offences

The POEO Act contains a number of mid-range offences (Tier 2 offences) which relate to waste (maximum penalties for a corporation are $1 million and $120,000 for each day the offence continues, or for an individual, $250,000 and $60,000 for each day the offence continues).

It is an offence to pollute land without a pollution licence or exemption under a regulation.17

It is also an offence to:

• Transport waste to a place that cannot lawfully be used as a waste facility for that waste;18
• Use land as a waste facility without lawful authority;19
• Give false or misleading information about waste to another person in the course of dealing with the waste (eg lying about what type of waste it is).20

4.2.4.3 Minor waste offences

The offence of giving false or misleading information about waste to another person in the course of dealing with the waste (eg lying about what type of waste it is) can also be prosecuted as a Tier 3 offence by the issue of a penalty notice.21

The Protection of the Environment Operations (Waste) Regulation 2005contains a number of minor waste offences which relate to the storage and transport of waste.

For example, the Regulation requires that:

• All waste must be stored on premises (whether or not the waste was produced on the premises) in an environmentally safe manner. The maximum penalty for a corporation is $220,000; and for an individual it is $11,00022
• Waste which is being transported must comply with a number of requirements including: avoiding spillage, waste must be covered, containers must be secured safely, no mixing or transporting together of incompatible wastes, and must be capable of being sampled by the release of valves on the container.23

4.2.4.4 Waste tracking requirements

Certain types of higher risk wastes must be tracked when they are transported.24The types of waste to these requirements apply are listed in Part 1, Schedule 1 of the Protection of the Environment Operations (Waste) Regulation 2005.

The Regulation contains detailed provisions requiring records to be kept by those who consign, transport and receive such waste.25

4.2.5  Development consent for waste facilities

Most waste facilities will require development consent before they can be lawfully operated. The relevant local environmental plan will usually state whether a waste management facility requires development consent or not, or whether it is prohibited in the zone.

4.2.5.1 Designated development

Larger waste facilities are likely to be 'designated development'.

Designated developments are listed in Schedule 3 of the Environmental Planning and Assessment Regulation 2000 and include 'waste management facilities or works' that:

• Store, treat, or dispose of waste above a specified quantity; or
• Which are in an environmentally sensitive area (eg within 100 metres of a creek).

Environmental impact statements

A development application for a waste management facility which constitutes designated development must be accompanied by an environmental impact statement.26This also means that any person (a third party) can challenge the merits of any development consent in the Land and Environment Court (See Fact Sheet 2.2 para 8 on appeals for more information).

Most development applications for a waste management facility will also require a pollution licence and will therefore constitute integrated development.27This means that the processes for considering the development application and pollution licence application will be linked. See Fact Sheet 4.1 for more information on pollution licences.

For more information on development consents, see Fact Sheet 2.2.

4.2.6  Hazardous waste

4.2.6.1 Import and export of hazardous waste

The import and export of hazardous waste is regulated by the Commonwealth under the Hazardous Waste (Regulation of Exports and Imports) Act 1989.

The Federal Minister for the Environment is responsible for administering this Act through the Department of the Environment, Water, Heritage and the Arts.28

1. Waste Avoidance and Resource Recovery Act 2001, s 3 (Objects of Act). This Act repealed and replaced the Waste Minimisation and Management Act 1995.
2. Allocation of the Administration of Acts (No 2) 2008.
3. Waste Avoidance and Resource Recovery Act 2001, s 12(1) and (2).
4. Waste Avoidance and Resource Recovery Act 2001, s 24.
5. Waste Avoidance and Resource Recovery Act 2001, s 12(5).
6. Waste Avoidance and Resource Recovery Act 2001, s 14.
7. Waste Avoidance and Resource Recovery Strategy 2007, para 4.3 (Key result areas), p 32.
8. POEO Act, s 48. Note: Part 3 of Schedule 1 of the POEO Act contains a detailed list of interpretative provisions (ie definitions) identifying the different types of waste which are regulated under that Act.
9. POEO Act, s 75 (Conditions relating to waste)
10. POEO Act, s 75(6).
11. POEO Act, s 76.
12. Waste Recycling and Processing Corporation Act 2001, Part 2, s 4 and s 6.
13. POEO Act, s 6(2).
14. Protection of the Environment Operations (Waste) Regulation 2005, cl 47
15. POEO Act, s 115
16. POEO Act, s 119
17. POEO Act, s 142A.
18. POEO Act, s 143.
19. POEO Act, s 144.
20. POEO Act, s 144AA (maximum penalty corporation: $250,000, or individual: $120,000). Only the EPA can prosecute a person who commits this offence: s 144AA(6)
21. POEO Act, s 144AA. An enforcement officer from DECCW can issue a penalty notice for it: Protection of the Environment (Penalty Notices) Regulation 2004 (repealed by the Protection of the Environment Operations (General) Regulation 2009
22. Protection of the Environment Operations (Waste) Regulation 2005, cl 48.
23. Protection of the Environment Operations (Waste) Regulation 2005,cl. 49.
24. Protection of the Environment Operations (Waste) Regulation 2005, cl 18.
25. See Part 3 (Waste tracking requirements) of the Protection of the Environment Operations (Waste) Regulation 2005.
26. Environmental Planning and Assessment Act 1979, s 78A(8)(a).
27. Environmental Planning and Assessment Act 1979, s 91.
28. Administrative Arrangements Order ( 25 January 2008 ) (Cth), Part 7.

     

EDO NSW

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