Waste Avoidance and Resource Recovery Act 2001 (NSW)

Waste Avoidance and Resource Recovery Act 2001 No 58 An Act to promote waste avoidance and resource recovery; to repeal the Waste Minimisation and Management Act 1995; to amend the Protection of the Environment Operations Act 1997; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Waste Avoidance and Resource Recovery Act 2001. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Objects of Act The objects of this Act are as follows— (a) to encourage the most efficient use of resources and to reduce environmental harm in accordance with the principles of ecologically sustainable development, (b) to ensure resource management options are considered against a hierarchy in the following order— (i) avoidance and reduction of waste, (ii) re-use of waste, (iii) recycling, processing or reprocessing waste, (iv) recovery of energy, (v) disposal, (c) to provide for the continual reduction in waste generation, (d) to minimise the consumption of natural resources and the final disposal of waste by encouraging the avoidance of waste and the reuse and recycling of waste, (e) to ensure that industry shares with the community the responsibility for reducing and dealing with waste, (f) to ensure the efficient funding of waste and resource management planning, programs and service delivery, (g) to achieve integrated waste and resource management planning, programs and service delivery on a State-wide basis, (h) to assist in the achievement of the objectives of the Protection of the Environment Operations Act 1997. 4 Definitions (1) In this Act— EPA means the Environment Protection Authority constituted by the Protection of the Environment Administration Act 1991. exercise a function includes perform a duty. function includes a power, authority or duty. principles of ecologically sustainable development means the principles of ecologically sustainable development contained in section 6(2) of the Protection of the Environment Administration Act 1991. waste has the same meaning as in the Protection of the Environment Operations Act 1997. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) Notes included in this Act do not form part of this Act. Part 2 Functions of EPA 5 (Repealed) 6 Functions of EPA (1) The EPA has the following functions under this Act— (a) to develop, implement or co-ordinate the implementation of (and evaluate strategies and programs for State-wide achievement of) government policy objectives in respect of— (i) resource efficiency and waste reduction and management in relation to regions, industry sectors or material types, and (ii) community education and awareness in relation to resource efficiency and waste reduction and management, and (iii) programs for the prevention of litter and illegal dumping, and (iv) market development for recovered resources and recycled material, and (v) information dissemination, (b) to develop, co-ordinate and monitor the implementation of event and public space waste management codes, (c) to assist local communities to enter into arrangements for regionally-based secondary resource recovery from waste, (d) to assist in developing co-ordinated waste management services, including system and contract reform (such as contracts for waste and recycling services and system co-ordination), (e) to research and develop waste reduction and resource efficiency infrastructure, technologies and systems, (f) to develop and support training and education programs for resource efficiency, waste reduction and waste and litter management, (g) to monitor, report on and evaluate the regional implementation of State-wide policies and strategies with respect to waste, (h) to advise the Minister as to the kinds of articles, materials and substances that should be prohibited from being used for landfill or from being used in connection with other treatment processes, and the resource recovery options for those articles, materials and substances, (i) such other functions as may be conferred or imposed on the EPA by or under this Act. (2) The EPA may provide advice to the Minister on matters relating to waste policy. (3) The EPA is, in the exercise of the EPA's functions under this Act, to have regard to the principles of ecologically sustainable development. 7–11 (Repealed) Part 3 Waste strategies 12 Waste strategies (1) The EPA must develop and approve a waste strategy for the State (the State waste strategy). (2) The State waste strategy must contain the information prescribed by the regulations. (3) The EPA must review the State waste strategy at least once every 5 years. (4) After reviewing the State waste strategy, the EPA must— (a) approve the continuation of the strategy, with or without variations, or (b) develop and approve a new strategy in accordance with this section. (5) The EPA may revoke or vary the State waste strategy at any time. (6) The NSW Waste and Sustainable Materials Strategy 2041—Stage 1: 2021–2027, published by the Department of Planning, Industry and Environment in June 2021, is taken to be the State waste strategy for the purposes of subsection (1). 13 (Repealed) 14 Power to request councils to report on waste strategy compliance (1) The EPA may request a local council to provide the reasons for any specified non-compliance by the local council with the objectives of the current waste strategy. (2) Such a request must be in writing and must specify the date by which the local council is requested to provide the reasons to the EPA. Part 4 Responsibilities with respect to industry waste reduction 15 Extended producer responsibility schemes (1) For the purposes of this Part, an extended producer responsibility scheme is a scheme for giving effect to an environmental policy in which the producer's responsibility for a product (including physical or financial responsibility) is extended to the post-consumer stage of the product's life-cycle. (2) Any such scheme includes a scheme for product stewardship (that is, shared responsibility for the life-cycle of products including the environmental impact of the product from the extraction of virgin materials, to manufacturing, to consumption and through to and including ultimate disposal and post-disposal consequences). (3) In this Part— producer of a product includes a supplier of the product in this State or person having a proprietary interest in the name under which the product is supplied in this State. product includes any substance. 16 Regulations for implementation and operation of schemes The regulations may make provision for or with respect to the implementation and operation of extended producer responsibility schemes in connection with a product, group of products or an industry in New South Wales. 17 Circumstances in which schemes may be implemented (1) The Minister is not to recommend the making of a regulation for or with respect to the implementation of an extended producer responsibility scheme unless the Minister is satisfied that it is necessary to do so having regard to the following matters— (a) the volume of waste requiring ultimate disposal or the toxicity of the waste generated, (b) whether there is a national scheme in place that adequately addresses waste issues in New South Wales, (c) whether there is an effective voluntary scheme in place (nationally or State based) that is able to achieve the desired outcomes and is being actively implemented, monitored and reported on, (d) whether economic analysis supports the implementation of the scheme, (e) whether there are any constitutional or other impediments to New South Wales acting unilaterally in implementing the scheme. (2) A regulation with respect to the implementation or operation of a scheme cannot be challenged or invalidated because of this section. 18 Priorities with respect to the implementation of schemes (1) The EPA is required to publicly advertise each year a priority statement with respect to the extended producer responsibility schemes the EPA proposes to recommend for implementation under this Part. (2) The advertisement is to be published in a manner that the EPA is satisfied is likely to bring the advertisement to the attention of members of the public. (3) The advertisement is to invite written submissions to the EPA on any relevant matter relating to the priority statement and state the period (being not less than 1 month after the advertisement is last published) within which submissions may be made. (4) The EPA is, not later than 3 months after the closing date for submissions, to publish a report on any submissions received by the EPA and to make the report available to the public. Part 5 Container deposit scheme Division 1 Preliminary 19 Objects of Part (1) The objects of this Part are as follows— (a) to recognise the responsibility that the beverage industry shares with the community for reducing and dealing with waste generated by beverage product packaging, (b) to establish a cost effective State-wide container deposit scheme to assist the beverage industry to discharge that responsibility and to promote the recovery, reuse and recycling of empty beverage containers. (2) The container deposit scheme established by this Part includes the following features— (a) it provides for the establishment of a Scheme Coordinator and network operators with responsibility for the administration of the scheme, (b) it provides for the payment of refund amounts to persons depositing at collection points empty beverage containers that are subject to the scheme, (c) it provides for the establishment by the Scheme Coordinator of a cost recovery scheme under which beverage suppliers agree to make contributions towards the cost of paying those refund amounts, (d) it prohibits the supply of beverages in containers that are subject to the container deposit scheme by beverage suppliers who have not agreed with the Scheme Coordinator to make those contributions, (e) it prohibits the supply of beverages in containers of a kind that are not approved by the EPA. 20 Definitions In this Part— beverage—see section 21. collection point means— (a) any facility or premises for the collection and handling of containers delivered to the facility or premises in consideration of the payment of refund amounts, or (b) a reverse vending machine, or (c) any other facility or premises of a kind prescribed by the regulations. collection point arrangement—see section 25. collection point operator, in relation to a collection point, means— (a) a person who has entered into a collection point arrangement with a network operator in connection with the operation of the collection point, or (b) if there is no collection point arrangement in force in respect of the collection point—a network operator who administers and operates the collection point. container—see section 22. container approval means a container approval issued and in force under Division 3. corresponding law means a law of another State or a Territory that is declared by the regulations to be a corresponding law for the purposes of this Part. domestic waste management services has the same meaning as in the Local Government Act 1993. material recovery facility operator means— (a) a person who carries on a business that is or includes the processing for reuse or recycling of domestic waste designated for recycling and collected by that or any other person during the course of domestic waste management services and who— (i) holds an environment protection licence under the Protection of the Environment Operations Act 1997 authorising the processing of the waste (otherwise than by thermal treatment) at specified premises, or (ii) is approved in writing by the EPA as a material recovery facility operator for the purposes of this Part, or (b) any other person of a class prescribed by the regulations. network arrangement—see section 25. network operator means a person with whom the Minister enters into a network operator agreement (and, when used in relation to a network operator agreement, means the person with whom the Minister enters into the agreement). network operator agreement—see section 24. refund amount means the amount prescribed by the regulations under section 23. refund marking, in relation to a container, means a marking or labelling that complies with the requirements prescribed by the regulations. reverse vending machine means a machine or other device from which refund amounts can be obtained by an operation that involves inserting empty containers into the device, whether or not some other action is required to activate the device. Scheme means the container deposit scheme established by this Part. Scheme administration agreement—see section 24. Scheme arrangement means— (a) a supply arrangement, or (b) a network arrangement, or (c) a collection point arrangement. Scheme Coordinator means the person with whom the Minister enters into a Scheme Coordinator agreement. Scheme Coordinator agreement—see section 24. Scheme participant means— (a) a Scheme Coordinator, or (b) a network operator, or (c) a supplier who has entered into a supply arrangement with a Scheme Coordinator, or (d) a collection point operator. supplier means a person who carries on a business that is or includes the supply of beverages in containers, but does not include a person of a class excluded from the operation of this Part by the regulations. supply means supply, by way of sale or otherwise, in the course of carrying on a business. supply arrangement—see section 25. 21 Meaning of "beverage" In this Part, beverage means a liquid intended for human consumption by drinking, but does not include a liquid of a kind that is excluded from the operation of this Part by the regulations. 22 Meaning of "container" (1) In this Part, container means— (a) a container that is designed to contain a beverage and to be sealed (when filled with the beverage) for the purposes of transport or storage before its sale, or delivery, for the use or consumption of its contents, or (b) any other container of a kind prescribed by the regulations as a container for the purposes of this Part. (2) However, container does not include a container of a kind that is excluded from the operation of this Part by the regulations. 23 Refund amount The regulations may prescribe an amount as the refund amount for the purposes of this Part. Division 2 Administration of Scheme 24 Scheme administration agreements (1) The Minister may enter into written agreements (Scheme administration agreements) with persons in connection with the management and administration of the Scheme. (2) There are the following types of Scheme administration agreement— (a) a Scheme Coordinator agreement, (b) a network operator agreement. (3) The Minister may invite applications for Scheme administration agreements in any manner the Minister considers appropriate. (4) An application for a Scheme administration agreement must be accompanied by the fee prescribed by or determined under the regulations. (5) In determining whether to enter into a Scheme administration agreement, the Minister— (a) must consider whether the applicant is a fit and proper person to enter into, and fulfil the obligations imposed by, the agreement, and (b) may consider any other matters the Minister considers relevant. (6) The regulations may provide for the matters that the Minister may consider in determining whether an applicant is a fit and proper person for the purposes of subsection (5). (7) Subsection (6) does not limit the matters that the Minister may consider in determining whether a person is a fit and proper person for the purposes of subsection (5). 25 Content of Scheme administration agreements (1) A Scheme Coordinator agreement must include provisions requiring the Scheme Coordinator to enter into and give effect to the following arrangements— (a) arrangements with suppliers (supply arrangements) requiring the suppliers to pay to the Scheme Coordinator contributions towards the cost of the management, administration and operation of the Scheme, (b) arrangements with network operators (network arrangements) in connection with the establishment, administration and operation of collection points requiring the Scheme Coordinator to pay to the operators refund amounts and associated administration and handling costs for containers that are collected at the collection points (and for which the collection point operators are required to pay a refund amount under Division 3). (2) A network operator agreement must include provisions requiring the network operator to enter into and give effect to arrangements with persons in connection with the establishment and operation of collection points (collection point arrangements) requiring the network operator to pay to those persons refund amounts and associated handling costs for containers that are collected at those collection points (and for which a refund amount is payable under Division 3). (3) A Scheme administration agreement must include such provisions as the Minister considers necessary to ensure— (a) that each Scheme arrangement required under the agreement specifies a methodology for determining the amounts payable under the arrangement, and (b) that the Scheme Coordinator or network operator to whom the agreement applies does not act unfairly, or unreasonably discriminate, against or in favour of any particular Scheme participant in negotiating, entering into, performing obligations under or enforcing any Scheme arrangement. (4) A Scheme administration agreement may provide for such other matters as the Minister considers appropriate in relation to the management, administration or operation of the Scheme. (5) The regulations may make provision for or with respect to the performance targets (including by reference to any specified network of collection points or area of operation) and any other matters to be included in a Scheme administration agreement. (6) A Scheme Coordinator agreement may contain provisions relating to the exercise by the Scheme Coordinator of similar functions under the laws of other States and Territories relating to container deposit schemes. (7) Nothing in this section or any other provision of this Division (except section 32) limits the matters for which a Scheme administration agreement may provide. 26 Approval of certain Scheme arrangements (1) A Scheme Coordinator agreement may require the Scheme Coordinator, before entering into a network arrangement, to apply to the EPA for approval of the arrangement. (2) A network operator agreement may require the network operator, before entering into a collection point arrangement, to apply to the EPA for approval of the arrangement. (3) The regulations may make provision for or with respect to approvals and applications for approvals, including for or with respect to the payment of application fees and approval fees to the EPA by the Scheme Coordinator and network operators and to the revocation of approvals by the EPA. 27 Regulations relating to content of Scheme arrangements The regulations may make provision for or with respect to the content of Scheme arrangements made under a Scheme administration agreement. 28 Payment of refund amounts to material recovery facility operators (1) A Scheme Coordinator agreement may require the Scheme Coordinator to pay to material recovery facility operators refund amounts (processing refunds) for containers that are collected during the course of waste management services and that are processed by the operators for reuse or recycling. (2) The EPA may, by order published in the Gazette, issue a protocol (a processing refund protocol) to be applied in determining the amounts payable to material recovery facility operators as processing refunds under a Scheme Coordinator agreement. (3) Without limiting subsection (2), a processing refund protocol may set out the means for determining the estimated number of containers received, processed or dispatched by a material recovery facility operator, including by the use of audit or monitoring programs. (4) A processing refund protocol may— (a) apply generally or be limited in its application by reference to specified exceptions or factors, or (b) apply differently according to different factors of a specified kind, or (c) authorise any matter to be from time to time determined, applied or regulated by any specified person or body. (5) A processing refund protocol must comply with any requirements of the regulations. (6) A processing refund is not payable to a material recovery facility operator unless a processing refund protocol has been issued under this section. (7) The regulations may make provision for or with respect to processing refunds and claims for processing refunds, including for or with respect to the following matters— (a) the manner in which a claim for a processing refund is required to be made by a material recovery facility operator, (b) the assessment of claims for processing refunds, (c) prohibiting the landfill disposal of containers in respect of which claims for the payment of processing refunds have been made by material recovery facility operators, (d) prohibiting the making of claims for the payment of processing refunds in respect of containers that have been disposed of to landfill. (8) Without limiting subsection (1), (2) or (7), a Scheme Coordinator agreement or the regulations (or both) may make provision for limiting— (a) the material recovery facility operators or classes of material recovery facility operators who are entitled to claim processing refund amounts, or (b) the classes of containers for which processing refunds are payable, or (c) any other circumstances in which processing refunds are payable. 29 Inconsistent provisions void (1) A provision of a Scheme Coordinator agreement is, except as provided by the regulations, void to the extent to which it is inconsistent with— (a) a provision of Division 3, or (b) any regulations made under section 25, 27 or 28. (2) A provision of a network operator agreement is, except as provided by the regulations, void to the extent to which it is inconsistent with— (a) a provision of Division 3, or (b) any regulations made under section 25 or 27. (3) A provision of a Scheme arrangement entered into between a Scheme Coordinator and any other Scheme participant is, except as provided by the regulations, void to the extent to which it is inconsistent with— (a) a provision of the Scheme Coordinator agreement that is applicable to the Scheme Coordinator, or (b) a provision of a network operator agreement that is applicable to a network operator with whom the Scheme Coordinator has entered into a network arrangement, or (c) a provision of Division 3, or (d) any regulations made under section 27. (4) A provision of a collection point arrangement entered into between a network operator and a collection point operator is, except as provided by the regulations, void to the extent to which it is inconsistent with— (a) a provision of the network operator agreement that is applicable to that network operator and that relates to that arrangement, or (b) a provision of Division 3, or (c) any regulations made under section 27. 30 Penalties for contravention (1) The provisions of a Scheme administration agreement may be enforced by penalty provisions or in any other manner that the agreement may provide. (2) A Scheme Coordinator or network operator who contravenes a provision of a Scheme administration agreement that is enforceable by a penalty provision is liable to pay, as a debt due to the State, an amount determined in accordance with the agreement as the penalty for the contravention. (3) In this section, penalty provision means a provision of a Scheme administration agreement that provides for the payment of an amount of penalty for the contravention of a specified provision of the agreement. (4) This section (and the provisions of Scheme administration agreements authorised by this section) have effect despite any other law. 31 Monitoring and enforcement of compliance (1) A Scheme administration agreement may— (a) specify the monitoring, reporting and audit requirements to be included in a Scheme arrangement, and (b) provide for the exercise of powers and other functions under Chapter 7 of the Protection of the Environment Operations Act 1997 by the EPA (and authorised officers appointed by the EPA) in connection with the agreement, and (c) require a Scheme arrangement to provide for the exercise of powers and other functions under that Chapter by the EPA (and authorised officers appointed by the EPA) in connection with the arrangement, and (d) specify any other measures to be taken by the Scheme Coordinator or network operator to whom the agreement applies to ensure that the parties comply with a Scheme arrangement. (2) If a Scheme administration agreement provides, or a Scheme arrangement provides (or is required under a Scheme administration agreement to provide), for the exercise of powers and other functions under Chapter 7 of the Protection of the Environment Operations Act 1997 in connection with the agreement or arrangement, that Chapter extends to the exercise of powers and other functions by the EPA (and by authorised officers appointed by the EPA) for the following purposes— (a) determining whether there has been compliance with or a contravention of the agreement or arrangement (or any condition of an approval granted by the EPA in relation to the arrangement), (b) obtaining information or records for purposes connected with the monitoring or audit of the activities of parties to the agreement or arrangement in relation to the performance of their obligations under the agreement or arrangement. (3) The provisions of Chapter 7 of the Protection of the Environment Operations Act 1997 apply for any such purpose as if the responsibilities and functions of the EPA under this Act included the matters referred to in subsection (2). (4) This section does not affect the exercise of powers or other functions under Chapter 7 of the Protection of the Environment Operations Act 1997 in connection with this Act that are authorised to be exercised without reliance on this section. 32 Term of Scheme Coordinator agreement (1) The term of a Scheme Coordinator agreement must not exceed 7 years. (2) The Minister may, with the consent of the Scheme Coordinator, extend the agreement for a further period (not exceeding 3 years). The term of the agreement must not be extended more than twice (that is, so that the agreement has effect for a total period not exceeding 13 years). 33 Variation and termination of agreement (1) A Scheme administration agreement may be varied or terminated by agreement in writing between the Minister and the Scheme participant. (2) The Minister may, by notice in writing given to the Scheme participant, vary or terminate a Scheme administration agreement without the consent of the Scheme participant— (a) if satisfied that the Scheme participant has failed to meet any performance target under the agreement, or (b) in any other circumstances authorised by the agreement. (3) Without limiting subsection (2), the Minister may vary a Scheme administration agreement without the consent of the Scheme participant to provide for any performance target or other matter required by this Part or the regulations to be included in the agreement. (4) The Scheme participant is not entitled to any compensation as a result of the variation or termination of a Scheme administration agreement under subsection (2)(a) or (3). (5) A provision of a Scheme administration agreement is void to the extent to which it purports to exclude, limit or modify the operation of this section. (6) The regulations may make further provision with respect to the variation or termination of a Scheme administration agreement. (7) In this section, Scheme participant, in relation to a Scheme administration agreement, means the Scheme Coordinator or network operator who has entered into the agreement. 34 Performance audit (1) At the request of the Minister, the EPA is to conduct a performance audit of the activities of any Scheme Coordinator or network operator in relation to the performance of obligations under a Scheme administration agreement. (2) At the conclusion of the performance audit, the EPA is to provide the Minister with a report. (3) If the EPA is of the opinion that a Scheme Coordinator or network operator is not complying with the Scheme administration agreement, the EPA may make recommendations to the Minister on appropriate remedial actions to be taken. (4) The regulations may make provision for or with respect to performance audits under this section. 35 Reports by Scheme Coordinator (1) A Scheme Coordinator must, within 90 days after the end of each financial year, prepare and deliver to the Minister a report on the following matters— (a) the performance of the Scheme Coordinator by reference to the performance targets under the Scheme Coordinator agreement, (b) the amounts charged to suppliers under supply arrangements, (c) any other matter prescribed by the regulations. (2) The Minister is to cause a copy of the report to be tabled in each House of Parliament within 9 months after receiving the report. (3) In this section— financial year means a period of 12 months commencing on 1 July. 36 Advisory committees (1) The Minister may appoint such advisory committees as the Minister considers appropriate for the purpose of advising the Minister in the exercise of the Minister's functions under this Part. (2) An advisory committee has the functions the Minister may from time to time determine for it. (3) The persons appointed as members of an advisory committee must, in the opinion of the Minister, represent a range of interests and expertise appropriate to the purpose for which the committee is appointed. (4) An advisory committee member holds office for the period specified in the instrument of appointment of the committee member, but the appointment may be terminated by the Minister at any time. (5) One of the advisory committee members, in and by the instrument by which the committee member is appointed or another instrument made by the Minister, is to be appointed as chairperson of the committee. (6) An advisory committee member is entitled to be paid the fees and allowances (if any) determined from time to time by the Minister in respect of the committee member. (7) Subject to the regulations and any directions of the Mi