New South Wales Circular Economy Delivery Plan

Background to the Delivery Plan

NSW Government’s Waste and Sustainable Materials Strategy 2041

In 2021, the New South Wales Government released the NSW Waste and Sustainable Materials Strategy 2041 (WaSM).² The WaSM updated the Waste Avoidance and Resource Recovery Strategy 2014–2021,³ and focuses on capitalising on the environmental benefits and economic opportunities of waste management. It outlines the actions the New South Wales Government proposes to take between 2021 and 2027 to deliver on its long term objectives, being to:

• reduce total waste generated by 10% per person by 2030;
• have an 80% average recovery rate from all waste streams by 2030;
• significantly increase the use of recycled content by governments and industry;
• phase out problematic and unnecessary plastics by 2025; and
• halve the amount of organic waste sent to landfill by 2030.

Independent Review of the Resource Recovery Framework

Also in 2021, the EPA commissioned an independent review (Review) of the New South Wales waste resource recovery framework (Framework).⁴

The Framework is comprised of the Protection of the Operations Act 1997 (NSW), the Protection of the Environment Operations (General) Regulation 2022 (NSW) and the Protection of the Environment Operations (Waste) Regulation 2014 (NSW) (Waste Regulation) as well as the EPA’s policies which support these laws.

The objective of the Review was to examine the Framework and to provide recommendations to the EPA on how well it:

a) protects the environment and human health from the inappropriate use of waste;

b) achieves beneficial resource recovery and facilitates circular economy outcomes, including pathways for innovation;

c) allows the EPA to take appropriate regulatory action to protect the environment and human health;

d) allows for transparency, clarity, and enforceability; and

e) balances the potential risks and benefits of resource recovery.

The Review was undertaken by Dr Cathy Wilkinson, former head of the Victorian Environment Protection Authority, and was informed by consultation with industry, government and community stakeholders.

The Review produced 22 recommendations aimed at achieving the following four outcomes:

1. Improved administration and decision making;
2. A clearer definition of waste;
3. Production of high quality materials to facilitate circularity; and
4. Improving approaches to known and emerging contaminants.

EPA response to the Review

In 2022, the EPA considered the recommendations of the Review and released its response (Response).⁵ In the Response the EPA ‘supported’ 16 of the 22 recommendations, whilst ‘supporting in principle’ the remaining 6 recommendations.

The Delivery Plan

Building on the Response, the EPA recently released its delivery plan, Towards a Circular Economy: enhancing the NSW resource recovery framework (Delivery Plan) which sets out the actions the EPA will take to implement the 22 recommendations from the Review and reform the Framework to better support the transition to a circular economy.

The overarching aim of the Delivery Plan is to ensure that the Framework supports the higher-order use of materials so they stay in the economy for as long as possible, thereby maximising their lifespan and value, and helping to reduce carbon emissions, while minimising the risk of harm to human health and the environment.

Anticipated Regulatory Updates

New or Updated Guidance for Orders and Exemptions

Resource recovery orders (Orders) made pursuant to clause 93 of the Waste Regulation and resource recovery exemptions (Exemptions) made pursuant to clauses 91 and 92 of the Waste Regulation allow some wastes to be beneficially re-used independent of the usual NSW laws that control applying waste to land, using waste as a fuel, or using waste in connection with thermal treatment. The appropriateness, application, use and transparency of assessments and decision making for Orders and Exemptions has proved problematic for the resource recovery industry in the past. Refreshed or new guidance will seek to resolve these uncertainties. The EPA is also expected to publish a protocol for using technical experts and/or panel/s to inform decision-making on Orders and Exemptions.

New-Look Orders and Exemptions

The EPA has committed to reviewing the form, structure and content of Orders and Exemptions to make them easier to understand while maintaining their enforceability. The review will include engaging with key stakeholders to determine how to improve the public availability of Orders and Exemptions. The EPA has flagged that it will consider how existing EPA public registers for other legislative instruments could be used to support the publication of Orders and Exemptions.

Revised Application of the Framework

The Delivery Plan acknowledges stakeholder views that the definition of ‘waste’ is too broad and that this impacts the development of resource recovery markets and consumer perceptions of recovered materials. In light of this, the EPA is looking to streamline the application of the Framework by exploring whether some activities that use, process and/or store recovered materials should be excluded from the definition of ‘waste’, and therefore will sit outside the waste regulatory system.

New Pathways

With the refinement of the definition of ‘waste’, the EPA will be investigating new regulatory pathways to enable end-of-waste outcomes for suitable common, low risk recovered materials. Similarly, new regulatory pathways may be developed for waste management technologies and processes with the aim of supporting innovation.

Waste Management and Planning Approvals

In recognition of the fact that the EPA cannot achieve NSW’s circular economy objectives alone, the EPA has committed to working with planning authorities to address upstream waste management practices to achieve better resource recovery outcomes with a focus on waste generator practices.

Considered Enforcement

The EPA will develop new regulatory plans, similar to the EPA’s current Regulatory Strategy 2021–24,⁶ specific to the waste and resource recovery industry. These new plans will consider how the EPA’s 8 regulatory elements - listen, educate, enable, act, enforce, monitor, require and influence - could be better utilised in the waste and resource recovery industries to enhance protections for consumers of recovered resources and place greater responsibility on waste generators and processors.

Refreshed Contaminants Management

Following an external expert scientific review, the EPA plans to revise its approach to contaminant management. It is envisaged that the revised approach will include proactive investigation of emerging contaminants and a refreshed approach to regulating asbestos contaminants in waste. This may signal an end to a zero tolerance approach to asbestos in soils, in favour of a risk-based approach.

If you require further details on the Delivery Plan, please contact a member of our team.