Australia: New End of Waste framework to assist with changing our perception of waste

Last Updated: 28 November 2016
Article by Karen Trainor and Adeline Brosnan

Waste producers not currently supplying their waste should be aware that there are even better opportunities to do so under the new end of waste framework.

As of 8 November 2016, the beneficial use approval (BUA) framework under Chapter 8 of the Waste Reduction and Recycling Act 2011 has been replaced by the end of waste (EOW) framework. The new EOW framework will promote resource recovery opportunities and aims to transform the perception of waste so that it is recognised as a valued resource.

The EOW framework exists as a result of changes approved under the Environmental Protection and Other Legislation Amendment Act 2014, which were designed to increase business opportunities for waste generators, waste processors and businesses receiving recovered material from within Queensland.

How does the new framework operate?

Under the EOW framework, waste can be approved as a resource if the Department of Environment and Heritage Protection (EHP) considers that the waste meets certain quality criteria for specific use.

Waste is approved as a resource, if it is supplied by a waste producer under:

  • an EOW code (similar to the former general BUAs); or
  • an EOW approval (similar to the former specific BUAs, however these are granted on a trial basis where an EOW code has not yet been developed).

If approved as a resource under the EOW framework, waste will not be considered "waste" under section 13 of the Environmental Protection Act 1994, at least until disposed or otherwise illegally dumped or littered.

EOW codes

Where EHP considers that certain waste has properties that make it comparable to a product, it may develop an EOW code. These codes are outcomes-focused and specify what needs to be achieved for waste to be a resource. As per the former general BUAs, any waste producer may supply waste as a resource under an EOW code, provided they have registered with EHP and have complied with any conditions relating to the code. Importantly, it is the waste producer's responsibility to ensure that the waste is of the requisite quality for the specific use.

Transitional EOW codes

While EHP is in the process of developing EOW codes, the following general BUAs have been identified as transitional codes:

  • General Beneficial Use Approval - Irrigation of Associated Water (including coal seam gas water)—ESR/2016/2418 (expires on 24 April 2019);
  • General Beneficial Use Approval - Coal combustion products—ESR/2015/1631 (expires on 31 December 2018);
  • General Beneficial Use Approval for Foundry Sand—ESR/2016/2232 (expires on 31 December 2018);
  • General beneficial Use Approval for Drilling Mud—ESR/2016/2231 (expires on 31 December 2018);
  • General Beneficial Use Approval - Associated water (including coal seam gas water)—ESR/2016/2419 (expires on 16 May 2019);
  • General Approval of a Resource for Beneficial Use - Sugar Mill By-Products—ESR/2016/2233 (expires on 31 December 2018); and
  • General Beneficial Use Approval – Biosolids – ESR/2016/3273 (expires on 31 December 2018).

EOW approvals

Where an EOW code does not exist for a particular waste, a waste producer may still supply, provided it has a EOW approval. EOW approvals are intended to be used for when a potential market/demand does not already exist for waste or the harm parameters are unknown.

EOW approvals are similar to the former specific BUAs, as they apply to a specific holder for a limited time period. As part of the transition to the new framework, any existing specific BUA approvals are to be treated as EOW approvals.

Where EOW approvals differ to BUAs is in their purpose, which is to trial the use of a waste as a resource in order to provide proof of concept. As only one extension can be granted to an EOW approval, if a waste producer would like to continue supplying following expiry of the approval, it will need to make a submission to EHP for the development of an EOW code.

To streamline the development of EOW codes, applicants for EOW approvals will now need to obtain, and provide, a written report from a "suitably qualified person". This report, by someone with at least 2-5 years of experience relevant to the subject matter, is meant to help with any future submission for the development of an EOW code. To help EHP make a decision based on the trial findings in relation to benefits, sustainability, environmental best practice etc. the report should include the following information:

  • an assessment of the technical validity, relevance and accuracy of the information provided in the application;
  • an assessment of the technical feasibility and market potential of the proposed resource; and
  • an assessment of the risks associated with the proposed resource and the adequacy of any mitigation measures;

EHP requests that before making an EOW approval application, applicants participate in a pre-lodgment meeting to consider the feasibility of a future EOW code.

What do the changes mean for you?

Waste producers not currently supplying their waste should be aware that there are even better opportunities to do so under the new EOW framework.

Anyone currently operating under a general BUA should check whether it is one of the transitional BUAs, as these will transition into EOW codes. Any waste producer who has notified EHP under a general BUA will be taken to be a registered resource producer under a EOW code.

For waste producers operating under a specific BUA, you should be aware that these will be treated as EOW approvals. Accordingly, you should monitor the development of EOW codes as you may need to make submissions for one nearing the expiry of your existing approval.

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

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