Don’t be a casualty of the war on waste
AGWA Window & Glass Watch - 30 July 2019
https://www.awa.org.au/awanews/dont-be-a-casualty-of-the-war-on-waste
You don’t have to have been watching the ABC’s War on Waste to know that managing waste and recycling are among two of the biggest environmental issues facing the glass industry. But, did you know that your business may be held responsible for waste that is illegally disposed of or improperly recycled? Environmental regulators across Australia are increasingly holding the manufacturing and construction industry, including the glass industry, to account for the lawful disposal of their waste and recycling streams.
Why is waste an issue for the glass industry?
The glass industry produces significant amounts of waste glass from manufacture to installation. However, Legislation across Australia requires businesses to identify and lawfully dispose of all waste streams, from the office dust bin, to cleaning chemicals to the product offcuts. Classifying waste is not always straightforward, for example double glazed units contain the combination of sealant and hardener. The residue of these materials requires individual management for disposal, for an example the hardener is classified as hazardous waste which will require specialised disposal management.
Members need to be cautious about where they send waste – earlier this year the EPA in NSW took significant regulatory action against a glass recycling facility in metropolitan Sydney that had been operating illegally without a licence from the EPA. However, it is now no longer just the illegal operators that should have cause for concern. Regulators across Australia now have in their sights industry members who generate the waste that ends up in illegal facilities.
What are the legal obligations of your business?
Across Australia, the generators of the waste may also face regulatory action for permitting waste to be taken to an illegal facility. For example, in NSW sections 143 and 144 of the Protection of the Environment Operations Act 1997 impose responsibility on the business generating the waste to ensure that it is lawfully transported and disposed of. Waste offences across Australia do not require the business to know that what is occurring is illegal. Ignorance is not bliss but a fast track to compliance action.
Why is it important for your business to manage its waste properly?
Aside from any moral or corporate social responsibility, the EPA and other environmental regulators in each state and territory have extensive penalty and enforcement powers.
In NSW, penalties for unwitting breaches are up to $1,000,000 for corporations and $250,000 for individuals. In Victoria, from July 2020, the maximum penalty for corporations for the most serious offences will increase to $3.2 million. In NSW, QLD and Victoria, directors and in some cases managers are deemed to have committed the offence of the company and will be personally liable unless defences are made out. In fact, most states and territories have penalties for directors who commit environmental offences.
Equally troubling is the power of environmental regulators across Australia to issue statutory notices – which allow the regulators to issue notices which interfere in the operations of your business, potentially shutting the facility down while the issues are investigated.
What can you do?
Members of the glass industry, from manufacturers to suppliers and installers of glass, should consider preparing a waste management plan. Those with an existing environmental management system should ensure it deals appropriately with the legal obligations around waste management.
A good plan should include matters such as:
details of each waste type that will be generated;
the classification of the waste under the relevant legislation and guidelines in your state or territory;
procedures to ensure the waste is disposed of at a lawful place (such as inquiries of relevant licences and approvals);
keeping records of transport and disposal including dates, times, locations and dockets; and
provision for training, supervision and periodic audit.
The level of complexity should reflect the size and complexity of the waste issues.
If you require assistance to understand your legal obligations or advice on whether your management plan is compliant, please contact Ross Fox on 02 6650 7038 or rfox@fwolaw.com.
Ross Fox is a Principal of Fishburn Watson O’Brien, an Accredited Specialist in Environment and Planning Law, and leads its Environment and Planning Group. Ross is a former Principal Legal Officer of the NSW EPA and provides unique insights into negotiations with regulatory agencies and government. Ross advises the Waste Contractors and Recyclers Association (WCRA), the Australian Organics Recycling Association (AORA) and several of the leading players in the waste industry.