New draft guidelines on resource recovery orders and exemptions

This article was co-authored by Sophie Sanderson.

In case you missed it, the EPA has released two draft guidelines for consultation, namely the draft 'Guide to the NSW Resource Recovery orders and exemptions policy framework' (Draft Policy Guide) and draft 'Orders and exemptions application guideline' (Draft Application Guideline). Copies are available here.

By way of background:

• The starting point in NSW is that it is unlawful to dispose of waste other than at a licensed waste facility. There are a few exceptions to this general rule, one of which being the resource recovery framework. Under the framework, waste can be lawfully reused if it strictly satisfies the requirements of a Resource Recovery Order (RRO) and the corresponding Resource Recovery Exemption (RRE). In general terms, the RRO sets the conditions that waste generators and processors must meet before a material can be considered for reuse, and the RRE contains conditions regarding the reuse of that material.
• The EPA's draft guidelines were prepared in response to recommendations made by Dr Cathy Wilkinson in her 30 September 2022 report entitled "Independent review of the resource recovery framework", a copy of which is available here. In particular, Dr Wilkinson's recommendations included that the EPA "…clearly articulate its decision-making considerations for orders and exemptions…" and that it "… publish clear and comprehensive guidance materials for the application and assessment of orders and exemptions."

So, you may be asking, what is the difference between the Draft Policy Guide and the Draft Application Guideline? There is crossover between the two documents. However, there are also some important differences.

The Draft Policy Guide contains an overview of the relevant legislation and the EPA's policies and provides valuable information regarding the matters considered by the EPA when assessing applications for RROs and RREs. Importantly, it states that:

• Applicants will be advised in writing if their application is declined and the EPA's reasoning behind that decision.
• Whilst there is no formal review process, if a new application is made, it will be considered afresh and treated as a new application.
• The EPA will aim to make a decision within 60 days of receipt of a new application.

The Draft Application Guideline, on the other hand, offers guidance as to how to apply for an RRO/RRE, including the steps to be taken before making an application (such as a pre-application meeting with the EPA) and how to prepare your application to ensure that it addresses the EPA's assessment criteria.

Public consultation on both the Draft Policy Guide and the Draft Application Guideline is open until 5pm, Wednesday, 9 April 2025. Submissions can be made by emailing resource.recovery@epa.nsw.gov.au or completing the feedback survey available here.