Product Stewardship down under : a developing focus in waste management for New Zealand and Australia

Transcription

1 Product Stewardship down under : a developing focus in waste management for New Zealand and Australia Rachel Devine, Partner and Stephanie de Groot, Solicitor Minter Ellison Rudd Watts (New Zealand) International Environmental Lawyers Network Conference 2013 Introduction The concept of product stewardship within New Zealand and Australia is relatively new and still largely in the development phase. In the last five years both countries have introduced new national laws providing the mechanisms for a mix of voluntary, mandatory and co-regulatory product stewardship arrangements. In New Zealand, despite the availability of mandatory product stewardship, it remains voluntary. In Australia, mandatory and co-regulatory product stewardship is in operation but there are still only a handful of these arrangements. This paper summarises the product stewardship climate in New Zealand and Australia. It explains how product stewardship is a cradle-to-grave approach to waste management for both countries and demonstrates how it is developing. The key aspects of both countries approach are set out below: New Zealand: (a) Primary legislation: Waste Minimisation Act 2008 (b) No mandatory operating. Has a number of voluntary product stewardship operating and a number in development. (c) Faces three key challenges to the development of effective product stewardship: (i) free riders; (ii) collection and processing of historical waste; and (iii) shifts in the market. Australia: (a) Primary legislation: The Product Stewardship Act 2011 (b) Has a number of mandatory, coregulatory and voluntary product stewardship operating at a state and national level in Australia. (c) Faces several key challenges to the development of effective product stewardship, including: (i) achievement of national consistency; (ii) free riders; (iii) collection and processing of historical waste; and (iv) shifts in the market. The outlook for both nations is promising. Spurred on by new law and policy, there is a growing awareness amongst consumers and business that taking a whole life approach to products that are imported, manufactured and consumed makes sense and the number of voluntary product stewardship in both countries is increasing

2 Product stewardship is a cradle-to-grave approach to waste management in both New Zealand and Australia Product stewardship (also known as extended producer responsibility) in Australia and New Zealand is a cradle-to-grave approach to waste management. Product stewardship involves all of the people and organisations associated with the lifecycle of a manufactured product in taking responsibility for reducing the environmental impact of the product through its lifecycle and when it becomes waste. The same language is used in both nations relevant legislation. Both nations have also adopted a flexible approach to product stewardship. For example, product stewardship may involve a take-back scheme for used products; managing them through reuse and recycling. It may involve the redesign of a product to limit the amount of materials and resources required for manufacture, or limit the amount of hazardous materials those products contain. New Zealand: currently only voluntary The Waste Minimisation Act 2008: the legal framework for product stewardship in New Zealand The primary legislation governing product stewardship in New Zealand is the Waste Minimisation Act 2008 (WMA). The WMA provides for a number of other waste minimisation tools such as imposing levies on the disposal of waste to disposal facilities and the adoption of waste management and minimisation plans by territorial authorities. In relation to product stewardship, the WMA provides: (a) the legal framework for voluntary and mandatory product stewardship arrangements in New Zealand; (b) (c) offences and penalties for breaching the WMA; and for to be recognised and endorsed by the Minister for the Environment through accreditation. The mechanisms for mandatory and voluntary product stewardship under the WMA Product stewardship are mandatory for products that are identified by the Minister for the Environment as priority products. Priority products are those: (a) (b) (c) that will or may cause significant environmental harm when it becomes waste; or where there are significant benefits from reduction, reuse, reducing, recovery, or treatment of the product; and where the product can be effectively managed under a product stewardship scheme

3 The WMA requires for priority products to be developed and accredited as soon as practicable after a product is declared to be a priority product. The WMA also includes powers for creating guidelines about product stewardship for priority products, regulations about priority products and accredited and regulations about product materials and waste (for both priority and nonpriority products). In March 2009 the Government consulted on a list of priority products for mandatory product stewardship in its Waste Minimisation in New Zealand discussion document. Over 250 submissions on the proposals were received. The Minister for the Environment has yet to identify a product as a priority product and introduce any form of mandatory product stewardship. There are, however, several voluntary product stewardship that have been accredited under the Act and a number of non-accredited that are in operation. These are outlined in the following section of this paper. Serious penalties for breach The powers to regulate under the WMA are wide ranging and the penalties for breaching the regulations are fairly serious. For example, regulations can prohibit the sale of a priority product, except in accordance with an accredited scheme; and control or prohibit the manufacture or sale of products that contain specified materials. A producer (including manufacturers, brand owners and importers) that breaches such regulations could face a fine of up to NZ$100,000. Accreditation The WMA allows the Minister to formally endorse a product stewardship scheme through accreditation. Accreditation is mandatory for priority products but optional for nonpriority products. To become accredited, must meet a number of minimum requirements that ensure the scheme is detailed and has measurable and achievable objectives, as well as providing for operational logistics. The Minister is required to accredit a scheme if he or she is satisfied that the scheme: (a) (b) (c) (d) meets the minimum requirements; is likely to meet the scheme s objectives within the timeframes set; is likely to promote waste minimisation or reduce the environmental harm from disposing of the product to which the scheme relates without causing greater environmental harm over the life cycle of the product; is consistent with New Zealand s international obligations; and

4 (e) if the scheme relates to a priority product, is consistent with any guidelines that have been published. A number of voluntary product stewardship operate in New Zealand and a number are in development In New Zealand, there are seven national voluntary accredited under the WMA and a handful of successful voluntary that sit outside the WMA. There are also a number of in development. Examples of product stewardship operating in New Zealand are described in the table below. Table 1: examples of product stewardship operating in New Zealand Type of scheme Voluntary accredited under the WMA Voluntary sitting outside of the WMA Product Used oil Television sets Description Holcim Geocyle Holcim New Zealand Limited, through contracted service providers, collects and transports used lubricating oil nationwide and uses it as an alternative fuel source at its cement manufacturing plant. The Ministry for the Environment (MfE) estimated that, as at October 2012, the diversion rate for the amount of targeted waste diverted from landfills due to this scheme and the ROSE scheme (see Appendix 1) was 33%. TV TakeBack this scheme has recently been launched in the South Island of New Zealand aimed at diverting old television sets from landfills. The programme is a Government initiative, involving partnership with a range of recyclers, councils and retailers to provide a nationwide network of subsidised options to recycle old television sets. The programme will be funded by the Government s Waste Minimisation Fund, costing the public less than NZ$5 to recycle an old television set. The Government plans to role this programme out across the rest of the country throughout See Appendix 1 for further examples of New Zealand product stewardship. At the time of writing this paper the Ministry for the Environment is processing applications for accreditation for two voluntary relating to the modular carpets and nappy composting. The Ministry is also expecting a further four voluntary to apply for accreditation in the first half of From 1 January 2013 disposal facility operators are required to pay for their annual greenhouse gas emissions under the New Zealand Emissions Trading Scheme. It is expected that these obligations will further incentivise diversion of waste from landfills

5 Three key challenges to the development of effective product stewardship in New Zealand There are three key challenges to the development of effective voluntary product stewardship in New Zealand. These problems are unlikely to be unique to New Zealand and are likely to be exacerbated in voluntary. (a) (b) (c) Free riders: Free riders are producers that do not pay into a product stewardship system, but still benefit from the outcomes of the system. Examples of in New Zealand where this may be a problem include the Agrecovery Rural Recovery Programme and the Glass Packaging Scheme. Free riders can create instability in a scheme because they leave responsible brand owners to pick up the costs of managing all products in a market when they may not be the producer and they deter brand owners from joining the scheme. Collection and processing of historical waste: Historical waste is product that was placed on the market before a product stewardship initiative began to operate. Product stewardship are then faced with the problem of paying for the collection and processing of this pre-existing product. Also a problem are products that were introduced into the market where the original producer has gone out of business or has withdrawn from the market. In some cases the costs of dealing with these types of waste could prevent from being established. This can be a particular problem for long-life products such as electronic products which remain in the market for a long time and where brands develop significantly over time. Shifts in the market: The success of product stewardship may also be affected by shifts in the market. For example, if there is a major shift to different types of paint used in the market, the cost of recycling the paint may increase making the scheme more expensive and less sustainable. Australia: some mandatory and co-regulatory in place The Product Stewardship Act 2011: the primary legal framework for product stewardship in Australia The primary legislation governing product stewardship in Australia at a national level is the Product Stewardship Act 2011 (PSA). Other legislation also provides for product stewardship at a national level but in a less comprehensive manner such as the Product Stewardship (Oil) Act 2000 and the Ozone Protection and Synthetic Greenhouse Gas Management Act Three of Australia s states (New South Wales, Victoria and Western Australia) also have the legislative capability to implement product stewardship

6 The product stewardship regime under the PSA The PSA establishes three levels of product stewardship: voluntary, co-regulatory and mandatory: (a) Voluntary: The PSA's voluntary framework encourages product stewardship without the need for regulatory intervention. The majority of covered under the PSA are expected to be voluntary. Similar to New Zealand, both existing and new voluntary can apply to the Minister of Sustainability, Environment, Water, Population and Communities to become accredited. In accrediting a scheme, the Minister must have regard to: (i) (ii) (iii) (iv) whether the scheme's outcomes will further the objectives of the act and are likely to be achieved; whether the product stewardship criteria are satisfied in relation to the products to which the arrangement relates; the appropriate use of product stewardship logos; and public interest in the scheme. (b) Co-regulatory: The PSA's co-regulatory framework provides for product stewardship to be delivered by industry and regulated by the Australian Government. Regulations created under the PSA contain matters to be dealt with by a coregulatory arrangement, expected outcomes that are designed to further the objectives of the PSA, and the reporting and audit requirements for organisations delivering a mandatory scheme. Regulations also specify which manufacturers, importers, distributors and users of the targeted class of products are required to become members of a co-regulatory arrangement. These parties are called liable parties under the PSA. The liable parties are responsible for funding and implementing the scheme and have flexibility in determining how the regulated outcomes are achieved. (c) Mandatory: The PSA's mandatory framework enables regulations to be developed that place a legal obligation on parties to take, or not take certain actions in relation to a class of products. These obligations may include the labelling of products, making arrangements for recycling products at end of life or requiring a deposit and refund to be applied to a product. The PSA sets out the governance and enforcement arrangements for any mandatory scheme, the powers of the Australian Government as regulator of the and the reporting and audit requirements for organisations delivering a mandatory scheme. The PSA requires classes of products that are being considered as the subject of a coregulatory or mandatory scheme to be published in a list or notice on the Department of

7 Sustainability, Environment, Water, Population and Communities' website at least 12months before the creation of regulations in relation to that class of products. However, there may be special circumstances that justify the creation of regulations without such notification. The first class of products to be regulated under the PSA covers used televisions, computers, printers and computer products. Regulations (The Product Stewardship (Televisions and Computers) Regulations 2011) establishing a co-regulatory scheme for these products was introduced in Further details about this scheme are set out in the following section. Offences and penalties The PSA includes a series of enforcement and compliance provisions that impose civil penalties and empower the Minister to issue infringement notices and require enforceable undertakings from parties that do not comply with co-regulatory and mandatory requirements. Monetary penalties apply to both individuals (up to $22,000 for each infringement) and corporations (up to $110,000 for each infringement) plus 10% for each day that the offence continues. A number of mandatory, co-regulatory and voluntary product stewardship operating at a state and national level in Australia Australia has a number of mandatory, co-regulatory and voluntary product stewardship in place. Some of these are supported by national legislation including the PSA, some are supported by stand-alone state legislation, some are supported by a mix of state and national legislation and some have no legislative basis. Examples of product stewardship operating in Australia are set out below: Table 2: Examples of product stewardship operating in Australia Type scheme of Product Description Mandatory and coregulatory national Mandatory and coregulatory state-based Televisions, computer, printer and computer product waste. Beverage containers Product stewardship for televisions and computers - this is the first co-regulatory, industry-led scheme regulated by the Product Stewardship (Televisions and Computers) Regulations 2011 under the PSA. The objectives of the scheme include a reduction in the amount of television, computer, printer and computer product waste for disposal to landfill, an increase in the recovery of end-of-life products resources and fair and equitable industry participation. The Regulations aim to increase the recycling of covered products to 80% in So far there are three approved co-regulatory arrangements that are able to deliver services under the scheme. Product stewardship for beverage containers - this is a statebased mandatory scheme introduced by the South Australian Government. The scheme provides for the deposit of, and refund on beverage containers

8 Type scheme of Product Description Voluntary operating throughout Australia Mercury containing lamps FluroCycle this is a voluntary, national scheme that aims to increase the recycling of lamps containing mercury. The scheme s initial focus is the commercial and public lighting sectors which account for the largest consumption of mercurycontaining lamps. See Appendix 2 for further examples of Australian product stewardship. In addition to the above, a draft model for a national, voluntary product stewardship scheme for tyres received in-principle agreement from industry stakeholders in July This included an agreement to establish a company called Tyre Stewardship Australia to administer the scheme. Following consultation, an industry-government working group has finalised Guidelines for the scheme. The Guidelines are expected to be implemented by industry in the first half of National consistency a key challenge to the development of effective product stewardship in Australia Like New Zealand, Australia faces challenges to the development of effective product stewardship, including free-riders and funding issues for voluntary, issues in dealing with historical products and changes in product markets. Unlike New Zealand, Australia has an additional challenge of achieving national consistency. The development of the National Waste Policy in 2009 brought to light a number of issues with the existing approach to product stewardship in Australia. In the absence of a comprehensive national approach, the drivers of product stewardship in Australia had lead to a variety of regulatory, co-regulatory and voluntary product stewardship and extended producer responsibility approaches being implemented, trialled or proposed by individual states and territories. The patchwork of initiatives and proposals was creating uncertainty in the market place, causing additional regulatory and operational burden on business, was distorting the market and provided competitors outside the bounds of the jurisdictional with a competitive advantage. The PSA was introduced to address the national consistency issue and progress appears to have been made, with the development of a number of national voluntary such as FluroCycle, the Product Stewardship (Televisions and Computers) Regulations 2011 and the development of a national voluntary scheme for tyres

9 The outlook for product stewardship in Australia and New Zealand is promising The outlook for product stewardship in New Zealand and Australia is promising. However, without the introduction of mandatory product stewardship in New Zealand, scheme development is likely to be slower there than Australia. Product stewardship in New Zealand is voluntary and it looks set to stay this way with the current Government showing no intention of using any of the tools in the WMA to require product stewardship by undertaken. Australia is one-step ahead in this regard and has in place a handful of mandatory and co-regulated developed under state and national law. Under the PSA alone, the Australian Government has developed regulations for one co-regulatory scheme and has signalled that it is considering introducing regulations for a second national scheme. The development of co-regulatory and mandatory in Australia looks set to continue. The future for voluntary product stewardship in both New Zealand and Australia also looks hopeful. The market is placing increased value on product stewardship and taking responsibility for used products. The new requirement for disposal facility operators to pay for their annual greenhouse gas emissions under the New Zealand Emissions Trading Scheme may also drive further development of product stewardship to avoid paying additional costs on waste going to landfill

10 Appendix 1 New Zealand examples of product stewardship Type of scheme Voluntary accredited under the WMA Product Used oil Used oil Glass containers Agrichemicals, agricultural plastic containers, silage wrap and crop protection nets Agricultural plastics including bale wrap, silage wrap, silage pit covers, twine, animal feed/nutrition and crop bags Synthetic refrigerants Description Holcim Geocyle Holcim New Zealand Limited, through contracted service providers, collects and transports used lubricating oil nationwide and uses it as an alternative fuel source at its cement manufacturing plant. The Ministry for the Environment (MfE) estimated that, as at October 2012, the diversion rate for the amount of targeted waste diverted from landfills due to this scheme and the ROSE scheme (below) was 33%. ROSE NZ (Recovery of Oil Saves the Environment) this scheme is a New Zealand-wide used oil recovery programme, designed for users, oil producers and regulators to dispose of used lubricating oil in an environmentally sound manner. The purpose of the scheme is the collection of used oil for reuse as an alternative fuel source to diesel, light fuel oil and gas. Glass Packaging Scheme this scheme collects levies from member companies of the Glass Packaging Forum Incorporated that make or import glass containers, fill or sell glass containers in New Zealand. The levies raised are used to fund projects, research, infrastructure and educational programmes to increase the recycling and re-use of glass into either new glass containers or for alternative uses. MfE estimated that, as at October 2012, the diversion rate for the amount of targeted waste diverted from landfills due to this scheme was 3%. Agrecovery Rural Recycling Programme - this is a national rural recycling programme managed by the Agrecovery Foundation which was formed in The target products are collected at 70 permanent collective sites around New Zealand and recycled and/or disposed of in an environmentally acceptable way. Brand participants to the scheme pay a levy which pays for the recycling and disposal costs for their branded products. MfE estimated that, as at October 2012, the diversion rate for the amount of targeted waste diverted from landfills due to this scheme and the Plasback scheme (below) was 22%. Plasback under this scheme, the target products are collected on farms and consolidated by Agpac Limited at hubs around New Zealand before they are baled and shipped to a plastics recycling plant in China. The plastic is recycled into plastic resin pellets and reused in new plastic products. Refrigerants Recovery this scheme was established by the Trust for the Destruction of Synthetic Refrigerants to support international protocols such as the Montreal Protocol on Substances that Deplete the Ozone Layer established to protect the environment from the release of synthetic refrigerants. The Trust collects and destroys CFCs, HCFCs, HFS and any other synthetic refrigerants which have been used in refrigerants and air conditioning industries New

11 Type of scheme Product Description Zealand-wide in an environmentally acceptable way. MfE estimated that, as at October 2012, the diversion rate for the amount of targeted waste diverted from landfills due to this scheme was 3%. Unwanted paint and paint packaging PaintWise this scheme allows customers of Resene Paints Limited to responsibly dispose of their unwanted paint and paint packaging at one of 66 locations across New Zealand. Other brands of paint and paint packaging are also accepted. Unwanted paint is donated to community groups, used to cover graffiti, replace material in PaintCrete and GlassCrete and recycled appropriately. The cost of the scheme is met through a combination of fees paid on every litre of Resene paint sold and fees by customers disposing of non-resene paint. MfE estimated that, as at October 2012, the diversion rate for the amount of targeted waste diverted from landfills due to this scheme was 6%. Voluntary sitting outside the WMA of Television sets TV TakeBack this scheme has recently been launched in the South Island of New Zealand aimed at diverting old television sets from landfills. The programme is a Government initiative, involving partnership with a range of recyclers, councils and retailers to provide a nationwide network of subsidised options to recycle old television sets. The programme will be funded by the Government s Waste Minimisation Fund, costing the public less than NZ$5 to recycle an old television set. The Government plans to role this programme out across the rest of the country throughout Packaging Packaging Association product stewardship scheme this scheme was introduced by the Packaging Association of New Zealand. This scheme is a voluntary industry initiative that has been operating since The scheme is not accredited under the WMA although the Packaging Association reports that its scheme meets the product stewardship regime under the WMA. The goals of the scheme are to improve packaging design and systems to reduce packaging waste, increase reuse and recycled content of packaging and enhance consumer awareness and understanding of sustainable packaging

12 Appendix 2 Australian examples of product stewardship Type scheme of Product Description Mandatory and coregulatory national Mandatory and coregulatory state-based Voluntary operating throughout Australia Televisions, computer, printer and computer product waste. Used oil Synthetic refrigerants Product packaging Beverage containers Mercury containing lamps Product stewardship for televisions and computers - this is the first co-regulatory, industry-led scheme regulated by the Product Stewardship (Televisions and Computers) Regulations 2011 under the PSA. The objectives of the scheme include a reduction in the amount of television, computer, printer and computer product waste for disposal to landfill, an increase in the recovery of end-of-life products resources and fair and equitable industry participation. The Regulations aim to increase the recycling of covered products to 80% in So far there are three approved co-regulatory arrangements that are able to deliver services under the scheme. Product stewardship for Oil Scheme - this is a regulated and mandatory product stewardship scheme introduced by the Australian Government under the Product Stewardship (Oil) Act The scheme aims to increase used oil recycling. Product stewardship for refrigerant gases - this is a regulated and mandatory product stewardship scheme introduced by the Australian Government under the Ozone Protection and Synthetic Greenhouse Gas Management Act The scheme requires companies or persons who deal in and dispose of refrigerant gases to hold a Refrigerant Trading Authorisation. Australian Packaging Covenant - this is a co-regulatory scheme introduced by all Australian Governments and industry to reduce the environmental impacts of packaging materials across the packaging supply chain. The co-regulatory arrangement is underpinned by the Used Packaging National Environmental Protection Measure (NEPM) made under the National Environment Protection Council Act 1994 and given effect to by legislation in each state and territory. Product stewardship for beverage containers - this is a statebased mandatory scheme introduced by the South Australian Government. The scheme provides for the deposit of, and refund on beverage containers. FluroCycle this is a voluntary, national scheme that aims to increase the recycling of lamps containing mercury. The scheme s initial focus is the commercial and public lighting sectors which account for the largest consumption of mercurycontaining lamps. Agricultural chemicals containers Mobile phones and DrumMuster - this is a voluntary, national scheme introduced by industry to collect and safely dispose of unwanted agricultural chemicals and containers. MobileMuster - this is a voluntary, national scheme introduced by industry to collect and dispose safely of unwanted mobile phones

13 Type scheme of Product Description Unwanted computers Byteback - this is a voluntary state-based scheme operating in Victoria introduced to collect and dispose safely of unwanted computers. The scheme is jointly funded by the Victorian Government, leading computer manufactures and peak industry association. Victoria has led a number of product stewardship programmes for the safe disposal of unwanted products in addition to Byteback, including BatteryBack aimed at batteries, PaintBack aimed at paint and Flashback aimed at fluorescent lights

14 Rachel Devine ENVIRONMENT & PLANNING PARTNER MINTER ELLISON RUDD WATTS AUCKLAND, NEW ZEALAND "A talented and committed lawyer who achieves excellent outcomes" A description of Rachel s skills from Chambers Asia Pacific 2013 Wide environmental experience Rachel specialises in providing advice on all aspects of environmental and resource management issues for private and public sector clients. This includes commercial environmental and planning advice on real estate, energy, resource and infrastructure projects as well as issues arising on or consequent to the sale or purchase of businesses and assets. The planning for and implementation of large scale infrastructure projects commonly features in Rachel s practice. Rachel s experience in this area enables her to deliver a thorough approach to implementing a long-term strategy while proactively working with a project team. Strong and ongoing analysis of the opposition s approach also ensures creative and powerful legal and commercial strategies. Rachel s experience means she can provide practical down-to-earth solutions to environmental problems in any context corporate transactions, planning projects or site management. Environmental dispute resolution of all forms regularly forms part of strategies (negotiation, mediation, and litigation). Rachel leads the firm s resource management/environment team in New Zealand. Contact details t f m rachel.devine@minterellison.co.nz Minter Ellison Rudd Watts Minter Ellison Rudd Watts is one of New Zealand s leading, full-service law firms with a history dating back 130 years. We are proud to be a New Zealand law firm with a global outlook. While Minter Ellison Rudd Watts is a distinct New Zealand legal partnership it is a member of the Minter Ellison Legal Group. The Group employs more than 290 partners and 900 legal staff in a range of countries including New Zealand, Australia, The People s Republic of China, Mongolia and England. Minter Ellison Rudd Watts has 43 New Zealand partners, located across our Auckland and Wellington offices. As a leading, full-service legal firm, our teams collaborate to bring our best and brightest skills to bear for the benefit of clients across all key industry