A court has found that material stored by a Victorian recycling company is waste that must be disposed of, in a ruling that has implications for anyone operating a circular economy business.

The ruling also sends a message to companies that want to use recycling operations as a dumping ground for their waste, or recyclers who might try to pass off waste as recyclables.

No such findings were made against any of the parties involved in the current matter, however the state’s Environmental Protection Authority (EPA) says the decision by Victorian Supreme Court last week provides clarity on the definition of waste, plugging what the EPA says are potential holes in the state’s environmental protection laws.

Shepparton based company Nonferral Recycling had argued that the aluminium and lead products it was stockpiling weren’t waste,  but “a valuable scrap metal resource” for processing into products, and it therefore didn’t have to comply with EPA clean up notices issued in 2017.

But Justice Gregory Garde found otherwise, ruling that the materials were legally ‘waste’ as well as being environmentally hazardous, and the EPA notices were valid.

Aluminium and lead materials

The EPA notices related to three types of material, including up to 1,500 metric tonnes of lead, received via a waste broker from laboratories in WA; and up to 140 MT of aluminium,  transported from mining groups Ecka and Rio Tinto in Tasmania. Both of these were waste under the EPA Act, the court ruled.

Nonferral was paid $385/MT for receiving the aluminium products, the judge said, and invoiced the broker, Cleartech, for more than $400,000 between January 2015 and January 2016.

The court found the lead material was legally waste because it was documented and transported as waste by the producers, there was no ability to process or recycle it in Victoria and no market for it in Australia.

It found the aluminium material, including powder and paste, was contaminated with other material, had also been documented as waste, the producer was willing to pay to dispose of it, and there was no market for it as a product in Australia.

The court also noted that there was real risk that the handling and storage of the lead and aluminium materials represented an environmental hazard.

A third stockpile of aluminium foil offcuts at the premises was determined not to be waste, because they were deemed ready for sale to industry and represented no risk to humans or the environment.

Clarity on definition of waste

EPA CEO Lee Miezis says the June 2 ruling removes uncertainty that could otherwise have left loopholes in the state’s environment protection laws.

“This is an important decision because it removes any uncertainty and gives a clearer path to enforcing EPA regulatory notices for waste stockpiles, that have been issued to protect the community and the environment from industrial pollution,” he said.

This decision follows an earlier case brought by waste company Dasma Environmental, which also tried to claim the material it received at its  premises wasn’t waste, and therefore not subject to regulation by EPA.

In a decision last November the court of appeal also upheld EPA Victoria’s clean up notices.

The EPA said it would not be making any further comment on the Nonferral Recycling decision as it is open to appeal.

Comment has been sought from Nonferral Recycling.

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