Did the New South Wales Environment Protection Authority (EPA) in March move one step closer to a safer circular economy with the passing of the Environment Protection Legislation Amendment (Stronger Regulation and Penalties) Bill 2024. Or did it just drive another nail into the coffin of the state’s recycling industry given the recent fear-based approach – as opposed to science led – to responding to the discovery of asbestos in mulch product in New South Wales?
I guess only time will tell. In the meantime, however, let’s talk about the legislation which passed the NSW Parliament. The changes announced by government went from media release to law through both houses of Parliament in the space of little over a week. There was barely time to read the draft Bill. Regrettably however, the narrative that accompanied at times, will not pass that quickly, and may also have significant impacts that last way longer having a real potential to impact on both confidence in our industry and the adoption of our products.
The regulatory approach taken also highlighted the difficulty that NSW EPA has as a regulator, being both regulator and market development agency (to paraphrase Maslow)… if the only tool you have is a sledgehammer - everything looks like a nut! The take no prisoners approach to possibly one (1) company's mulch, ended in major confidence loss for all mulch makers, with orders cancelled and confidence industry wide called into question.
The reality is that whilst we do have laws to stop further placement of this problematic material circulating, this is not the case for all (like PFAS). Further we do not yet have any regulation to address the problem of non-recyclable materials, including asbestos, PFAS and many others in circulation being delivered incorrectly (due to incorrect classification or simply error) into resource recovery facilities.
However, we have no hesitation punishing those that are sent the material. The reality is that the new Act has the real ability to hamper investment in NSW given the size of the penalties even on those trying to do the right thing and has done little to clarify a number of areas that we have been trying to address with NSW EPA for many years. However, we now have significant legal consequences.
Do not get me wrong, WMRR strongly supports the need to drive out rogue operators and anyone who seeks to deliberately circumvent the safety regulations for asbestos and other problematic materials. However, the extent of the Bill and the scope that it covered makes it very easy for well-meaning operators trying to comply with ambiguous and problematic Resource Recovery Orders (RRO) framework (noting an independent review commenced on this in 2021 and is still underway with many areas remaining incomplete). However, now a failure to comply with this regime can result in a significant penalty, for example can anyone define ‘batch’ processing for me?
There is, however, a positive in this Act with the proposal that there be a regulatory regime created in NSW that places greater emphasis on the waste generator to classify materials. This is one of the solutions that industry has been working with NSW EPA on for over five (5) years to address in a real attempt to improve materials received and share the risk of managing these materials through the supply chain.
In my view, industry and NSW EPA need to collaborate with the same alacrity that led to the Bill to develop this regime, placing positive obligations for testing and classification on those that generate the material, before determining the recovery pathway, to drive the improved outcomes and increased confidence in the materials and products we are making. Those that deliver to us should be buying back.
The fact is the WARR sector is the end of the supply chain. We can only deal with the material we receive. And unfortunately, we often can’t see fibres of asbestos and molecules of PFAS, yet increasingly we are seeing regulators across Australia impose levels of reporting (LoR) on products that WARR make at levels well below what is in general circulation. PFAS is a clear example of this with Queensland this week advising that compost output must only contain 3 parts per billion of PFAS, yet I can buy make up with 10,500 parts per billion and apply it to my face!
Let me say it again, we cannot manage what we cannot see. Ideally, we need these products banned at first instance, but we also need to recognise that what is already on market will circulate even after a ban. And for this we desperately need regulators to work together nationally and with industry to develop common sense responses to both product development and material classification, with greater responsibility being placed on those classifying the material at first instance. Correct classification at the source is absolutely vital. And while recycling facilities do their own inspections to check material as it is received (and increasingly before), the fact is materials like asbestos and chemicals like PFAS are incredibly challenging because they often cannot be seen.
As NSW Health states (and I’m sorry if I sound like a broken record on this): “small quantities of asbestos fibres are present in the air at all times and are being breathed in by everyone without any ill effects. Most people are exposed to very small amounts of asbestos as they go about their daily lives and do not develop asbestos-related health problems.” And if PFAS is of as great as a concern as some regulators state, then it must be banned at a far faster pace than we are seeing.
Working across the supply chain, designing out hazardous and problematic materials, placing responsibility on generators, creating producer obligations, buying back the products that we make from these materials (and having confidence in doing so because they were sent to us knowing they were safe to recycle), that is what will drive a circular economy in NSW and indeed nationally. We have shown we can move quickly. Let’s hope that this energy to create circularity, and not just penalties, continue. Jobs, investment, and the planet are counting on us.