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2 Legislative and Policy Context

2.1 Overview

Strategic documents and legislation are combined in New Zealand to form the basic framework for waste management and minimisation. This section contains a brief summary of the key legislation relating to Waste Management and Minimisation Plans (WMMPs) and the key national policy and non-legislative documents you should consider when developing your WMMP. We recommend that you familiarise yourself with these key documents before commencing the waste management and minimisation planning process.

An outline of the key legislation is followed by an overview of national policy and non-legislative documents.

2.2 International commitment

New Zealand is party to international agreements that have an influence on the requirements of our domestic legislation. Some key agreements are the:

  • Montreal Protocol
  • Basel Convention
  • Stockholm Convention
  • Waigani Convention.

More information on these agreements is available at: www.mfe.govt.nz/laws/meas/

2.3 Legislation

The following pieces of legislation outline the various roles that territorial authorities (TAs) take in waste management and minimisation planning in New Zealand. All of this legislation is relevant to the development of WMMPs. The summaries contained in this section are a brief overview; specific clauses are cited later in relation to the WMMP development process, as appropriate.

Because this guidance is focused on the development of WMMPs, it does not provide an exhaustive legal review of the legislation (including the Waste Minimisation Act (WMA) and its requirements and implications) that has an impact on TAs. For example, the requirement for those who operate landfills to collect the waste disposal levy is not discussed in detail because this issue is addressed in other regulations and guidance documents. However, where there is specific legislation relevant to the WMMP preparation process, as outlined in chapter 3, the legislative requirement will be explained in terms of its relevance and implications.

A note on interpreting the WMA

There are a number of issues arising from the WMA that have not yet been legally tested. It is essential that readers review the WMA and where appropriate seek their own legal or other expert advice. Where the authors of this guidance have noted issues of particular risk or concern in relation to the development of the WMMP, these have been highlighted and recommendations made for you to seek further information or advice.

2.3.1 The Waste Minimisation Act 2008 (WMA)

The WMA represents an update of waste legislation to emphasise and promote waste minimisation. The purpose of the Act (s 3) is to “encourage waste minimisation and a decrease in waste disposal in order to protect the environment from harm; and provide environmental, social, economic and cultural benefits”.

The WMA contains seven parts:

  • Part 1: Preliminary provisions
  • Part 2: Product stewardship
  • Part 3: Waste disposal levy
  • Part 4: Responsibilities of territorial authorities in relation to waste management and minimisation
  • Part 5: Offences and enforcement
  • Part 6: Reporting and audits
  • Part 7: Waste Advisory Board.

Part 1 states the purpose of the Act and establishes definitions, including those for waste, diverted material, waste minimisation, disposal, disposal facility, reduction, reuse, recycling, recovery and treatment. The definitions (s 5) for waste, waste minimisation and diverted material are as follows:

Waste –

  1. means any thing disposed of or discarded; and
  2. includes a type of waste that is defined by its composition or source (for example, organic waste, electronic waste, or construction and demolition waste); and
  3. to avoid doubt, includes any component or element of diverted material, if the component or element is disposed of or discarded.

Waste minimisation means –

  1. the reduction of waste; and
  2. the reuse, recycling, and recovery of waste and diverted material.

Diverted material means any thing that is no longer required for its original purpose and, but for commercial or other waste minimisation activities, would be disposed of or discarded.

The aim of these definitions is to distinguish diverted material from waste. The definition of waste in the WMA distinguishes diverted material from waste that is discarded and disposed of. This was done to separate the concept of waste that has no further use, which is discarded and disposed of to landfill (or incineration – see the definition of ‘disposal’ in s 6), from the concept of material that is not needed for its original purposes but still has commercial or other value due to reuse, recycling and recovery initiatives. Note, however, that although a distinction is drawn between waste and diverted material, waste minimisation activities may affect both of these material streams.

The definitions of waste and diverted material contained in the WMA are important in the context of TA waste management and minimisation planning because they may affect your council’s powers in relation to bylaws and licensing for the management of waste and/or diverted materials. This is one of the areas in the WMA where expert advice may be required to clarify, for instance, when and how a bylaw and licensing system for waste operators or handlers can or should be applied.

Another important aspect of the definitions in the WMA is that they determine what materials are considered waste and diverted material. These should be considered within the scope of your WMMP and included in the waste assessment process.

Understanding the definitions

The following example is provided to help you determine if a material or product is a waste or a diverted material. This example considers the case of a passenger vehicle.

  • A car could be a product.
  • If the car is no longer wanted and is discarded and disposed of wholly to landfill (or incinerated), then the car could be considered a waste.
  • However, if used oil that is no longer required for its original purpose (to operate the vehicle) is recovered from the car for treatment and recycling or reuse, this oil may then be a diverted material, as it is not disposed of to landfill (or incinerated).
  • If steel is recovered from the vehicle for recycling, then this steel may be a diverted material, as it is not disposed of to landfill (or incinerated).
  • If the materials remaining from the vehicle (after oil and steel have been recovered for recycling) are disposed of to landfill (or incinerated), these materials may be waste.
  • If any component or element of the oil or steel that was recovered from the discarded vehicle for recycling is later, during processing or treatment, deemed unsuitable for reuse, recycling or recovery, and is thus disposed of to landfill, this material may be considered waste.

Another example is a glass drink container (or ‘bottle’).

  • A bottle may be a product.
  • If the bottle is no longer wanted and is discarded and disposed of to landfill (or incinerated), then the bottle may be considered a waste.
  • If the bottle is discarded by its owner into a recycling collection system with the intention of the bottle being recovered for recycling or reuse, then the bottle may be diverted material.
  • If the bottle, or any component or element of the bottle, has been discarded by its owner into a recycling collection system but is then not reused or recycled and is disposed of to landfill, then the material discarded may be considered a waste.

Part 2 of the WMA contains mechanisms for accrediting and monitoring product stewardship schemes to minimise waste from products. Product stewardship is a process whereby those involved in the life cycle of a product or service are also involved in identifying and managing its environmental impacts, from the development and manufacture of the product through to its use and final disposal. Although product stewardship schemes accredited under the WMA focus on minimising waste, this does not mean they may not reduce other environmental impacts during the product’s life cycle, or the intervention needs to be at the point of disposal. For instance, a scheme may work to make changes in the design of a product to reduce the use of toxic material. This would be likely to reduce both the environmental impact of manufacturing and make recycling easier.

This Part outlines the process for identifying priority products and the development process for accredited product stewardship schemes (eg, take-back schemes). The WMA provides for regulations to be developed for the priority products identified by the Government. The form of the accredited scheme will be determined by the product and will be developed with the input of the key stakeholders and industry.

TAs have the opportunity to benefit from some schemes as they may improve the recovery and diversion of products they currently manage, and in some cases TAs may be directly or indirectly involved in a scheme, either on a voluntary or a statutory basis. Your WWMP may identify what schemes you will seek to support, join or leverage off to achieve your broader waste minimisation objectives. For example, a number of TAs and regional councils have helped start − or currently participate and fund − several voluntary product stewardship ‘take-back’ schemes, such as for paint, used oil and other hazardous materials, although these are generally focused at the end of the product life cycle.

Part 3 establishes the levy on waste disposal to be collected via disposal facilities (municipal landfills). The landfill operator must pay the levy to the levy collector (either the Secretary for the Environment or an appointed levy collector). Operators may choose to recover the levy and any administrative costs through user charges to its customers. The levy provides funding for waste minimisation infrastructure, programmes and services. Approximately half of the funding secured through the levy is distributed quarterly back to TAs on a population basis, to be spent on waste minimisation only, in accordance with a council’s WMMP. The aim is to give councils significant flexibility in how they spend this funding on waste minimisation activities, so long as it is in accordance with their WMMP. More information about councils’ use of waste levy funds is contained in sections 4.5.4 and 4.7.1 of this guidance. Information about the levy regulations is available at: http://www.mfe.govt.nz/issues/waste/

Part 4 is dedicated to the responsibilities of a TA, which “must promote effective and efficient waste management and minimisation within its district” (s 42). Part 4 requires TAs to develop and adopt a WMMP. Effectively, plans made under the LGA roll over but must be reviewed no later than 1 July 2012. WMMPs are required to be completed following an assessment of future demand for waste collection, recycling, recovery, treatment and disposal services within the district (s 51). The development of a WMMP in the WMA is a requirement modified from Part 31 of the LGA 1974, but with even greater emphasis on waste minimisation.

A number of specific clauses in Part 4 relate to the WMMP process. It is essential that those involved in the development of a WMMP read and are familiar with the WMA, and Part 4 in particular. You may wish to seek legal advice on the interpretation and application of Part 4 to your particular circumstances. Chapter 3 of this guidance includes specific references to some sections of the WMA that are relevant to the process for developing and implementing a WMMP.

Part 5 covers offences and enforcement provisions similar to previous legislation giving TAs powers for enforcement of bylaws and local rules, as well as disposal controls.

Part 6 sets out requirements for reporting, and has relevance to TAs where they operate disposal facilities, as well as requirements specific to reporting on the waste levy expenditure and progress towards the implementation of WMMPs. These requirements will apply only when regulations are promulgated. These requirements, and their implications, are discussed further in chapter 3. Part 6 also allows an auditor to audit TA spending of levy money.

Part 7 establishes a Waste Advisory Board with the function of providing advice to the Minister for the Environment. The Board is composed of four to eight members appointed by the Minister, following public nomination, for up to a three-year term.

For a full text copy of the WMA, see: http://www.mfe.govt.nz/laws/waste-minimisation.html [The full text copy of the WMA has moved since this document was published. Updated 20 October 2009.]

2.3.2 The Local Government Act 1974 Part 31 (now repealed) and the Local Government Act 2002

Taken together these Acts required councils to assess how well they provided collection and reduction, reuse, recycling, recovery, treatment and disposal of waste in their district, and made councils responsible for the effective and efficient implementation of their waste management plan. The provisions of the LGA 1974, Part 31, and the sanitary assessment provisions for refuse (ie, solid waste) contained in Part 7 of the LGA 2002 have been repealed, and these provisions are now largely embodied within the WMA. Existing waste management plans prepared under the LGA 1974 are deemed to be waste management and minimisation plans under the WMA (s 43[4]). These existing plans must be revised under the WMA before 1 July 2012 (s 50).

The LGA 2002 contains various provisions that may apply to TAs when they are preparing their WMMPs, including consultation and bylaw provisions. Part 8, ss 145−146, provides TAs with broad bylaw powers, including the power to make solid waste and waste management bylaws. Part 8, s 158, outlines provisions for the review of bylaws. The procedure for making a bylaw and the requirement for completing a special consultative procedure when making a bylaw are contained in ss 155 and 156.

The LGA 2002, Part 6, s 77, refers to legislative requirements for TA decision-making, including consideration of the benefits and costs of different options in terms of the present and future social, economic, environmental and cultural well-being of the district. The Act also includes requirements for information to be included in a long term council community plan (LTCCP), including summary information about their WMMP. The relationship between the LTCCP and the WMMP is described in section 3.5 of this guidance, with more information in section 4.1.2.

For a full text copy of the LGA 2002, see: http://www.legislation.govt.nz/act/public/2002/0084/latest/DLM170873.html

2.3.3 The Hazardous Substances and New Organisms Act 1996 (the HSNO Act)

The HSNO Act addresses the management of substances that pose a significant risk to the environment and/or human health, from manufacture to disposal. The Act relates to waste management primarily through controls on the import or manufacture of new hazardous materials and the handling and disposal of hazardous substances.

Hazardous substances may be explosive, flammable, have the capacity to oxidise, toxic to humans and/or the environment, corrosive, or have the ability to develop any of these properties when in contact with air or water. Depending on the amount of a hazardous substance on site, the HSNO Act sets out requirements for material storage, staff training and certification. These requirements would need to be addressed within operational and health and safety plans for waste facilities. Hazardous substances commonly managed by TAs include used oil, asbestos, agrichemicals, LPG and batteries.

The HSNO Act provides minimum national standards that may apply to the disposal of a hazardous substance. However, under the RMA a regional council or TA may set more stringent controls relating to the use of land for storing, using, disposing of or transporting hazardous substances. For a full text copy of the HSNO Act, see: http://www.legislation.govt.nz/act/public/1996/0030/latest/DLM381222.html?search=ts_act_hazardous+substances_resel&sr=1

2.3.4 The Resource Management Act 1991 (RMA)

The RMA provides guidelines and regulations for the sustainable management of natural and physical resources. Although it does not specifically define ‘waste’, the Act addresses waste management and minimisation activity through controls on the environmental effects of waste management and minimisation activities and facilities through national, regional and local policy, standards, plans and consent procedures. In this role, the RMA exercises considerable influence over facilities for waste disposal and recycling, recovery, treatment and others in terms of the potential impacts of these facilities on the environment.

Under s 30 of the RMA, regional councils are responsible for controlling the discharge of contaminants into or onto land, air or water. These responsibilities are addressed through regional planning and discharge consent requirements. Other regional council responsibilities that may be relevant to waste and recoverable materials facilities include managing the adverse effects of storing, using, disposing of and transporting hazardous wastes; the dumping of wastes from ships, aircraft and offshore installations into the coastal marine area; and the allocation and use of water.

Under the RMA, TA responsibility includes controlling the effects of land-use activities that have the potential to create adverse effects on the natural and physical resources of their district. Facilities involved in the disposal, treatment or use of waste or recoverable materials may carry this potential. Permitted, controlled, discretionary, non-complying and prohibited activities and their controls are specified within district planning documents, thereby defining further land-use-related resource consent requirements for waste-related facilities.

In addition, the RMA provides for the development of national policy statements and for the setting of national environmental standards (NES). There is currently one enacted NES that directly influences the management of waste in New Zealand – the Resource Management (National Environmental Standards Relating to Certain Air Pollutants, Dioxins, and Other Toxics) Regulations 2004 (the NES for Air Quality). This NES requires certain landfills
(eg, those with a capacity of more than 1 million tonnes of waste) to collect landfill gases and either flare them or use them as fuel for generating electricity. The result is increased infrastructure and operational costs for qualifying landfills, although with costs potentially offset by the harnessing of captured emissions for energy generation.

Unless exemption criteria are met, the NES for Air Quality also prohibits the lighting of fires and burning of wastes at landfills, the burning of tyres, bitumen burning for road maintenance, burning coated wire or oil, and the operation of high-temperature hazardous waste incinerators. These prohibitions limit the range of waste treatment/disposal options available within New Zealand with the aim of protecting air quality.

For a full text copy of the RMA 1991 (1 October 2008 reprint), see: http://www.legislation.govt.nz/act/public/1991/0069/latest/DLM230265.html

For a full text copy of the NES for Air Quality, see: http://www.mfe.govt.nz/laws/standards/consolidated-nes-aug2005.pdf

2.3.5 The Health Act 1956

The Health Act 1956 places obligations on TAs (if required by the Minister of Health) to provide sanitary works for the collection and disposal of refuse, for the purpose of public health protection (Part 2 – Powers and duties of local authorities, s 25). It specifically identifies certain waste management practices as nuisances (s 29) and offensive trades (Third Schedule). The Health Act enables TAs to raise loans for certain sanitary works and/or to receive government grants and subsidies, where available.

Health Act provisions for the removal of refuse by local authorities have been repealed by local government legislation. The Public Health Bill is currently progressing through Parliament. It is a major legislative reform reviewing and updating the Health Act 1956, but it contains similar provisions for sanitary services to those currently contained in the Health Act 1956.

For a full text copy of the Health Act 1956, see: http://www.legislation.govt.nz/act/public/1956/0065/latest/DLM305840.html

2.3.6 The Health and Safety in Employment Act 1992

The Health and Safety in Employment Act 1992 outlines health and safety responsibilities for the management of hazards in relation to employees at work. This could potentially include substances and wastes. The Act requires employers to identify and manage hazards present in the workplace, provide adequate training and supervision, and supply appropriate protective equipment. Employers must take all practicable steps to ensure the safety of employees while at work, and in particular must take all practicable steps to (among other things) ensure employees are not exposed to hazards arising out of the arrangement, disposal, organisation, processing, storage, transport or use of things in their place of work.

Workplace health and safety is recognised as a key concern for the waste industry, with a number of fatalities and serious incidents leading to the formation of a health and safety industry sector group (under the WasteMINZ umbrella). Led by this sector group, and supported by the wider industry, the Accident Compensation Corporation and the Department of Labour, a health and safety waste industry strategy document has been produced. The strategy sets out a vision and objectives, priorities, and examples of current and general guidance to help achieve safe and healthy workplaces within the waste sector.

For a full text copy of the Health and Safety in Employment Act 1992, see: http://legislation.govt.nz/act/public/1992/0096/latest/DLM278829.html

For a full text copy of Health and Safety in the Waste Industry: Industry Strategy, see: http://www.wasteminz.org.nz/sectorgroups/safety/ACC2473.pdf

2.3.7 Climate Change (Emissions Trading ) Amendment Act 2008

The Climate Change (Emissions Trading) Amendment Act 2008 amends the Climate Change Response Act 2002 by introducing a New Zealand Emissions Trading Scheme (ETS). A select committee review is currently underway on the emissions trading scheme and related matters. The committee does not have a set timeframe for reporting back. It finished hearing submissions on 11 May 2009 and is expected to report back shortly.

In its current form the Act will require landfill owners to surrender emission units to cover methane emissions generated from the landfill. Should any future solid waste incineration plants be constructed, the Act would also require emission units to be surrendered to cover carbon dioxide, methane and nitrous oxide emissions from the incineration of household wastes. The waste sector will not formally enter the ETS until 1 January 2011, at which time voluntary reporting can occur. Mandatory reporting requirements will apply from January 2012 and emission units will need to be surrendered as of 2013.

The method for calculating emissions from landfills and incinerators is yet to be regulated, and the expectation is that Government would work with industry to do so during 2009 and 2010. It is expected that waste sector reporting requirements under the ETS would build on those developed to support the WMA.

As noted above, the ETS is currently under review, so councils will need to seek further information on any subsequent amendments to the Act.

For a full text copy of the Climate Change (Emissions Trading) Amendment Act 2008, see: http://www.legislation.govt.nz/act/public/2008/0085/latest/DLM1130932.html

For more information regarding the ETS implementation (including the review), see: http://www.climatechange.govt.nz/emissions-trading-scheme/index.html

2.3.8 Other related legislation

Various other pieces of legislation address the management of small quantities of infectious, radioactive and hazardous wastes in New Zealand. These include the:

  • Litter Act 1979

  • Radiation Protection Act 1965

  • Agricultural Compounds and Veterinary Services Act 1997

  • Ozone Layer Protection Act 1996

  • Biosecurity Act 1993.

For a full text copy of the Litter Act 1979, see: http://www.legislation.govt.nz/act/public/1979/0041/latest/DLM33082.html?search=ts_act_
litter_resel&sr=1/

For a full text copy of the Radiation Protection Act 1965, see: http://www.legislation.govt.nz/act/public/1965/0023/latest/DLM372539.html

For a full text copy of the Agricultural Compounds and Veterinary Services Act 1997, see: http://www.legislation.govt.nz/act/public/1997/0087/latest/DLM414577.html?search=ts_act_
agricultural_resel&sr=1

For a full text copy of the Ozone Layer Protection Act 1996, see: http://www.legislation.govt.nz/act/public/1996/0040/latest/DLM391469.html?search=ts_act_
ozone+layer_resel&sr=1

For a full text copy of the Biosecurity Act 1993, see: http://www.legislation.govt.nz/act/public/1993/0095/latest/DLM314623.html

2.4 Policy and other relevant documents

2.4.1 The New Zealand Waste Strategy: Towards Zero Waste and a Sustainable New Zealand

The NZWS presents a vision of minimising waste and optimising waste management, aimed at the ultimate goal of zero waste to landfill. It sets out a practical programme of action as well as specific targets for waste reduction and management.

Territorial authorities were not previously required to specifically consider the NZWS in the development of their waste management plans. The WMA (s 44) requires that TAs “have regard to” the NZWS, or other such policy that is subsequently developed, when preparing a WMMP. The regulatory tools provided by the WMA enable New Zealand to improve how the NZWS can be implemented and how its targets can be measured.

The Ministry for the Environment and Local Government New Zealand prepared the NZWS, which was adopted as government policy in 2002. In 2006, a review of progress of the NZWS, titled Targets in the New Zealand Waste Strategy: 2006 Review of Progress,2 found that some targets had been achieved or were progressing towards the target dates, but that many had not been achieved, were unable to be achieved or their progress was not able to be measured effectively. As part of its work programme in relation to the implementation of the WMA, and as follow-up to the 2006 review of the NZWS, the Ministry for the Environment has consulted on a draft revised set of NZWS targets and a revised NZWS is anticipated in late 2009. You will need to give ongoing consideration to revisions and changes to the NZWS, including any revised targets, amendments to the NZWS or any future policy as it evolves.

For a full text copy of the NZWS, see: http://www.mfe.govt.nz/publications/waste/waste-strategy-mar02/index.html/

For information about the review of the NZWS targets, see: http://www.mfe.govt.nz/issues/waste/

2.4.2 Waste Management Planning by Territorial Authorities

Waste Management Planning by Territorial Authorities

This Office of the Auditor General performance audit report was conducted in 2007 to inform Parliament about the usefulness of TAs’ waste management planning for solid waste. It found that while nearly all TAs had adopted waste management plans, not all plans were useful in guiding council decisions on waste management. The emphasis, in the plans that were reviewed in detail, favoured waste diversion and waste disposal activities rather than waste reduction, although the efforts of some councils carrying out waste cleaner production and other waste reduction-oriented behaviour change programmes was applauded. The report advised that the preparation of waste management plans needed to take account of the costs, benefits and operational requirements of pursuing particular methods of managing waste. In addition, TAs needed to ensure that their methods were feasible and that they understood the implications of adopting particular activities.

Many of the key issues raised and the recommendations of the Office of the Auditor General report have been incorporated into Part 4 of the WMA. On page 27, figure 6, titled “Considerations when preparing or reviewing waste management plans”, sets out a list of key considerations for TAs to take into account when preparing or reviewing their WMMPs, as well as what information (at a minimum) should be provided in a WMMP. This advice remains relevant for writing a WMMP under the WMA, with the exception of references to the old legislation. It should also be noted that the WMA has further requirements for TAs to consider when preparing, amending or revoking their WMMPs. The WMA requirements have been considered alongside the Office of the Auditor General's report and are reflected in chapters 3 and 4 of this guidance, as well as in the sample WMMP outline provided in Appendix 1.

For a full text copy of the Office of the Auditor General report, Waste Management Planning by Territorial Authorities, see:
http://www.oag.govt.nz/2007/waste-management/docs/oag-waste-management.pdf

2.4.3 The Packaging Accord 2004

The Packaging Accord is a voluntary product stewardship agreement bringing together key players from throughout the packaging life cycle, including the packaged goods industry, recyclers, local government and central government. This Accord is relevant here because it establishes a set of targets for packaging waste and diverted materials, with the local government sector a signatory to the agreement.

The Packaging Accord relies heavily on collection services, infrastructure and marketing, education and behaviour change programmes, many of which are subsidised or supported by TAs and their ratepayers. A number of TAs presently have key roles in the collecting, transporting and sale of packaging products through their kerbside recycling and resource recovery facilities. TAs should consider the social, environmental and financial impacts on TAs and their relevant services of the Packaging Accord in the context of WMMPs.

The Packaging Accord expires in 2009 and future options for product stewardship schemes for packaging are being considered by the Packaging Accord signatories and governing board.

For more information about the Packaging Accord, its status, performance and sector action plans, see:
http://www.mfe.govt.nz/issues/sustainable-industry/initiatives/packaging or http://www.packagingaccord.org.nz

 

2 Ministry for the Environment. 2007. Targets in the New Zealand Waste Strategy: 2006 Review of Progress. Wellington: Ministry for the Environment.

 

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