Industry News, New South Wales, News

NSW Court of Criminal Appeal ruling on asbestos waste case explained

Legal consultants from NSW gave Inside Waste their view on a court ruling that affects waste and recycling operators in the state – particularly those dealing with construction and demolition (C&D) waste.

On August 2, 2019, the NSW Court of Criminal Appeal (CCA) overturned an earlier Land and Environment Court decision regarding waste-related legislation in NSW, after the NSW Environment Protection Authority (EPA) prosecuted Grafil Pty Ltd for using land described as a waste facility without lawful authority. The EPA prosecuted Grafil under the Protection of the Environment Operations Act 1997 (POEO Act.), along with Mackenzie, as the director of Grafil.

The EPA took action after Grafil received various loads of material from recycling facilities, between 2012 and 2013, which was stockpiled on the lot, pending use as a road base.

Asbestos was detected in the stockpiles – although the precise volume of material was not established beyond reasonable doubt, it ranged between 24,000 and 44,000 tonnes.

Following the prosecution, and the Land and Environment Court decision to find Grafil and Mackenzie not guilty, the CCA moved to overturn the decision, which followed with much discussion from legal consultants.

Gavin Shapiro, a partner at Hones Lawyers, said CCA’s decision has changed the landscape for waste in NSW.

He said that by overturning the earlier Land and Environment Court decision, the meanings of how “waste” and “asbestos waste” are understood have been redefined.

The CCA stated that the definition of “waste” is intended to be wide and it can fall within one, or many sub-definitions, Shapiro explained.

“If there is ever any doubt whether material may or may not be waste, this judgment means that it is safest to assume that it is waste.

“The decision means that the courts have now endorsed a zero-tolerance approach to the presence of asbestos in waste, which is likely to have serious consequences to the recycling industry – especially C&D recycling,” Shapiro said.

Fishburn Watson O’Brien principal, Ross Fox, said the broader industry is concerned with the way that resource recovery orders and exemptions, and the waste regime, have been interpreted by the CCA.

He said it is time for some hard conversations about the prevalence of asbestos in C&D waste, however other aspects need to be considered.

“Zero tolerance is a worthy goal, but it should be moderated by sensible protocols for managing asbestos waste – for example where unexpected asbestos is found on a well-run licensed facility.

“The Waste Contractors and Recyclers Association [of NSW] (WCRA) have been pushing for an asbestos protocol for some time. Hopefully this decision will trigger the EPA to re-engage with the waste industry on that issue,” Fox said.

Fox explained that while the C&D waste sector will be most affected, the impact of the decision will reverberate across sectors, as resource recovery orders and exemptions are the backbone of recycling in NSW.

“The EPA itself sets the terms of resource recovery orders exemptions and so can address many of the issues raised by the decision.

“As the EPA, you need to be careful what you wish for. While a strict reading of resource recovery orders makes the EPA’s job as a regulator easier, it will have a chilling effect on private sector investment in resource recovery. This in turn, could put resource recovery targets in jeopardy,” Fox said.

He anticipates the waste industry will use the decision as an opportunity to seek a reset of the system.

MRA Consulting Group director, Mike Ritchie, said the waste industry needs to work with the EPA to develop common-sense asbestos protocols so that everyone can do their recycling and waste management jobs.

He said that while there will be frustration about how the EPA interpretations of the POEO Act are applied in practice, the CCA has given much needed clarity on the rules.

“Make sure your EPA licence and council development consents are in order.

“In respect of waste/recyclables – if in doubt don’t receive it, don’t stockpile it and don’t apply it to land. Get advice first,” Ritchie said.