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Residue waste FAQ

Protection of the Environment Operations (Waste) Amendment (Residue Wastes) Regulation 2005

Questions & Answers

Question 1: What is the NSW Government doing to stop the reuse of inappropriate industrial wastes as fertilisers?

The Department of Environment and Conservation NSW (DEC) has introduced a regulation which prohibits the land application of certain higher risk wastes for the purpose of growing vegetation. The identified wastes are referred to as 'residue wastes' and are mostly industrial by-products, for example wastes from metal and mineral sands processing. Residue wastes can contain undesirable contaminants, such as heavy metals and persistent organic compounds, and the Government wants to ensure they are not able to contaminate land, food or the environment.

DEC has worked closely with the Department of Primary Industries (DPI) in developing its regulatory approach. DPI regulates the sale of fertilisers, liming materials and trace element products under the Fertilisers Act 1985 to protect human health, trade and the environment. DEC's prohibition does not cover products which are covered by the Fertilisers Act and comply with the prescribed maximum contaminant levels under that legislation. DPI has already set maximum contaminant limits for cadmium, mercury and lead, and will add to this list if it identifies there are further contaminants in fertilisers, liming materials or trace element products that are causing harm.

DEC will allow the land application of a residue waste (using an exemption process) where the person or business wanting to use the waste can clearly demonstrate that it will be beneficial to growing plants and will not harm the environment, human health or agriculture.

NSW is also working with other States and Territories and the Commonwealth Government to progress this issue nationally under the joint guidance of two ministerial councils-the Environment Protection and Heritage and the Primary Industries Ministerial Councils. Work is being undertaken at the national level to identify potential specific contaminants in fertilisers and establish appropriate environmental limits for their application to land. DEC and DPI are actively involved in this process.

In the medium term, this may lead to guidance being prepared about restrictions on the types and concentrations of contaminants that must not be applied to land, whether in labelled and regulated fertiliser products or in waste being directly applied to land for 'beneficial reuse'.

In the interim, the NSW Government has identified common higher risk sources of waste materials and introduced a regulation to prohibit their application to land without consideration of their composition and impacts.

Question 2: Why the need for regulation?

Effective regulation is needed to balance the objectives of protecting the environment, human health and agriculture while encouraging appropriate resource recovery. The identified residue wastes are those wastes which DEC considers should not be applied to land without some assessment of their potential contaminants and likely impacts.
NSW Government policies on sustainability include encouraging beneficial uses for wastes rather than simply disposing of them. However, this is only appropriate where the waste materials can be safely reused or recycled, and where such use would not cause harm to agriculture, the environment or human health. While not frequent, there have been instances where potentially harmful wastes such as solvents have been mixed with organic waste and applied to land as 'fertiliser'.

Question 3: How does the regulation work?

The regulation defines certain waste materials to be 'residue wastes' and then prohibits their application to land for any purpose related to growing vegetation. The prohibition also applies where the residue wastes are mixed with any other substances. A mechanism has been established so that DEC can exempt residue wastes from the prohibition where it has been shown that their use for growing vegetation has benefit and will not harm the environment, human health or agriculture. Only where it is clear that the use of waste does not cause harm would an exemption be granted. Lawfully sold fertiliser products that are compliant with the requirements of the Fertilisers Act (including contaminant levels) are not covered by the prohibition.

Question 4: What wastes does the prohibition apply to?

The following wastes are referred to in the regulation as residue wastes and must not be applied to land for a purpose related to growing vegetation:

1. fly ash or bottom ash from any furnace
2. lime or gypsum residues from any industrial or manufacturing process
3. residues from any industrial or manufacturing process that involves the processing of mineral sand
4. substances that have been used as catalysts in any oil refining or other chemical process
5. foundry sands and foundry filter bag residues
6. residues from any industrial or manufacturing process that involves the refining or processing of metals or metallic products
7. any waste that is hazardous waste, industrial waste or Group A waste (as defined in the Protection of the Environment Operations Act 1997, Schedule 1, Part 3, Division 2: Special interpretative provisions relating to waste.)

Question 5: Does the regulation only apply to waste?

Yes. The regulation applies only to residue waste and substances that are derived from residue waste.

Substances mixed with or made from residue waste are covered under the regulation to make sure that wastes are not mixed with other materials as a cheap means of disposal.

Question 6: Are any substances exempt from the prohibition?

The prohibition applies to any substance that is a residue waste or mixed with or made from a residue waste that is used on land used to grow vegetation, except:

• fertilisers, liming materials and trace elements regulated under the Fertilisers Act 1985
• a residue waste that has been granted an exemption by the EPA and is used in accordance with any conditions of that exemption.

Two general exemptions (with appropriate conditions) will be issued at the time of the regulation commencement on 1 December 2005. These are for:

• lime and gypsum residues from water treatment and plasterboard manufacture, and for
• ash produced in a furnace that burns only coal or uncontaminated biomass.

These were proposed in the consultation paper associated with the development of the regulation, and there were no objections to their implementation. Additional exemptions are likely to be sought and will be assessed by DEC and DPI on a case-by-case basis.

Question 7: What substances are regulated under the Fertilisers Act?

The Fertilisers Act regulates substances sold as fertilisers, liming materials or trace element products, other than those excluded by Ministerial Order under that Act.

To date the following substances have been excluded by Ministerial Order:

1. unprocessed animal manure including composted manure
2. septic tank sludge and crude night soil
3. crude offal
4. compost
5. seaweed
6. unmanufactured refuse, and
7. biosolids and biosolids products, including: liquid biosolids, dewatered biosolids, chemically stabilised biosolids, dried biosolids (including sun-dried and pelletised), composted biosolid products and products which contain any component of biosolids.

Question 8: Why doesn't the prohibition apply to commercial fertilisers?

It is not necessary to use environmental protection legislation to duplicate the role of the Fertilisers Act 1985. This Act regulates the sale of fertilisers so as to:

1. protect human health by ensuring that unsafe levels of heavy metals and other contaminants that may occur in fertilisers do not make their way into the human food chain, and
2. facilitate international trade by ensuring that agricultural products destined for export markets comply with requirements of international trading partners in relation to the presence of heavy metals and other contaminants, and
3. protect the environment by better informing purchasers of the composition of fertilisers and by restricting the proportion of certain substances that fertilisers may contain.

Question 9: How does a substance become exempt from the prohibition?

Any person or business may apply to DEC for an exemption, or DEC may on its own initiative make an exemption. DEC can grant an exemption for the land application of residue waste where such use is clearly demonstrated to be beneficial to growing plants and would not cause harm to the environment, human health or agriculture. Exemptions may have conditions attached. DEC will consult with DPI regarding the benefits to growing vegetation and likely impacts on agriculture.

The original Land Protection Proposal (public consultation paper) flagged that generic exemptions would be granted for

• fly ash or bottom ash from energy generating facilities which burn only coal or uncontaminated biomass, and
• lime or gypsum residues from plasterboard and the treatment of drinking water.

DEC therefore aims to have these exemptions gazetted, with some conditions, at the same time that the legislation commences.

Question 10: Will the prohibition apply to both imported and domestic wastes and waste-derived substances?

Yes. The prohibition will apply irrespective of the source of the waste.

Question 11: Won't the prohibition be a cost to industry-for both the people who make waste-derived fertilisers and the people who use it?

The use of waste materials in lawfully sold fertilisers regulated under the Fertilisers Act is not addressed by this regulation. However, if residue wastes are to be applied directly to land, or mixed with other materials such as composts and then applied to land, they will need to go through a managed gateway (the exemption process) to assess whether the use of the substance is beneficial and will not harm the environment, human health or agriculture. The prohibition will not commence until 1 December 2005, giving industry time to develop any proposal for exemptions.

The agricultural industries will be the main beneficiaries of this regulation in that it is aimed at the protection of their land and their produce.

Farmers and other landholders who have been using waste materials as fertilisers will need to ensure that they are not residue wastes or have been granted an exemption. They will need to find alternatives if the material is assessed as being unsuitable for land application, in the interest of protecting their land and produce from contamination.

Question 12: Why doesn't the DEC publish suitable specifications in order to ensure appropriate waste reuse rather than having a prohibition?

It would be ideal to have specifications developed in relation to each type of waste, similar to other guidelines developed by DEC, such as the Environmental Guidelines: Use and Disposal of Biosolids Products (Biosolids Guidelines). However the potential contaminants in waste materials are almost infinite and there is currently insufficient knowledge to set acceptable limits for all potential contaminants. Specifications also rely on detailed characterisation of the waste material by industry and consideration of 'fit for purpose' issues (i.e. knowledge of how the material is to be used, its quality and consistency etc.).

There are two principal mechanisms for the development of specifications:

• Businesses and industry groups can develop specifications and submit them to DEC with an application for exemption for a particular waste or waste-derived substance.
• The Environment Protection and Heritage Council, in collaboration with the Primary Industries Ministerial Council (PIMC), is developing a national framework for the use of industrial residues in land applications. In the medium term this process may deliver national standards for key contaminants.

Question 13: How will the prohibition be enforced?

DEC will enforce the prohibition through education, targeted compliance campaigns and routine enforcement action.