The New Act signals a fundamental shift from a consequence-based regulatory model to a prevention-based regulatory model. New requirements have also been introduced that will have a particular impact on those involved in collecting, transporting, handling, recycling, treating, storing or disposing of waste.
The New Act also introduces much higher penalties for some offences (up to $3.2 million) including, in some cases, imprisonment (up to 5 years).
This update looks at the way in which the changes under the New Act impact the waste industry.
Key Takeaways
- The New Act introduces a ‘general environmental duty’, which requires any person engaging in an activity that may give rise to risk of harm to human health or the environment from pollution or waste to proactively reduce those risks, as far as is reasonably practicable.
- Waste classifications have changed under the New Act.
- There are three new waste duties under the New Act. These duties require that waste is properly classified, that waste is properly transported and that waste is sent to a lawful place. Different duties apply to the different waste classifications.
- There are three tiers in the EPA’s new permission scheme comprising licenses, permits and registrations. Some sites that previously operated without any licence or permit will now be required to apply and hold one.
New General Environmental Duty (GED)
The New Act introduces the ‘general environmental duty’, which applies to any person engaging in an activity that may give rise to risk of harm to human health or the environment from pollution or waste.
The duty requires that person to proactively reduce those risks, as far as is reasonably practicable. The offence of not complying with the GED may arise regardless of whether there has been any actual harm – the GED is breached whenever a risk is not proportionally managed.
The Victorian EPA has released various guidance documents to help businesses apply the GED to their activities, including a specific guide on waste and recycling.
The Victorian EPA has recommended that businesses use the following 4 steps to manage their risks:
- Identify any hazards from activities that could cause harm.
- Assess the risk, based on the likelihood of the hazard occurring and the consequence of the harm.
- Implement suitable control measures, based on what is reasonably practicable for the business, with the aim of choosing the highest level of protection and reliability.
- Check controls regularly, including to ensure that they remain the most appropriate.
The phrase ‘reasonably practicable’ implies a level of proportionality – what is reasonably practicable for one business may not be reasonably practicable for another. For example, a large business will be expected know more about their risks and do more to mitigate them than a small business.
New Waste Classifications
The waste classifications have changed under the New Act. In particular:
- The category of ‘industrial waste’ is expanded to include:
- any waste once it is collected or gathered at a transfer station, resource recovery facility or a landfill; and
- non-kerbside wastes transported for fee or reward.
- ‘Prescribed industrial waste’ has been replaced with ‘priority waste’, which includes pre-classified industrial wastes as well as industrial wastes that have certain hazardous properties. ‘Priority waste’ includes certain wastes that were not ‘prescribed industrial wastes’.
- There is a new category of ‘reportable priority waste’, which includes the most hazardous wastes. Additional duties apply in relation to reportable priority waste.
New Waste Duties
There are three new waste duties under the New Act. These duties require that waste is properly classified, that waste is properly transported and that waste is sent to a lawful place. Different duties apply to the different waste classifications.
Waste duties in relation to industrial waste
Industrial waste may only be transported to a lawful place (see below).
Before industrial waste is transported, it may need to be classified to ensure that it is sent to a place that can lawfully receive that type of waste.
Waste duties in relation to priority waste
Priority waste may only be transported to a lawful place (see below).
Any person who has ‘management or control’ of a priority waste has duties to:
- classify the waste;
- ensure that the priority waste is contained in a manner that prevents its escape; and
- ensure that the priority waste is isolated in a manner that ensures resource recovery remains practicable (including during transport).
A person who has ‘management or control’ of soil sourced on-site from contaminated land that is industrial waste must also classify the soil by determining whether it is priority waste.
The phrase ‘management or control’ is defined to include:
- producing or generating waste;
- collecting, consigning, transferring or transporting waste; receiving, handling or storing waste;
- undertaking resource recovery or processing of waste; and
- undertaking waste disposal.
Those who create priority waste also have a duty to take all reasonable steps to identify and assess alternatives to waste disposal. This means looking at options such as avoiding producing the waste and potentially reusing or recycling the waste. Reasonable steps may include considering the availability of any relevant technology used in resource recovery or engaging a consultant to advise on alternatives to waste disposal for that type of priority waste.
A person transporting priority industrial waste to another place must give the transporter:
- the classification of the waste; and
- information regarding any risks of harm to human health or the environment that exist in relation to the priority waste.
Waste duties in relation to reportable priority waste
All of the duties that apply to priority waste also apply to reportable priority waste.
In addition, most reportable priority waste can only be transported by a person who holds an A10b registration to transport that waste. Reportable priority waste with the waste code B100 (acids), E100 (oxidising agents), G100 (ethers and highly flammable hydrocarbons, including petrol and jet fuel) and R100 (clinical and related wastes) may instead be transported by a transporter with an A10a permit. These requirements do not apply to waste tyres.
The EPA’s new Waste Tracker must also be used to inform the EPA each time reportable priority waste changes hands.
Duty to take waste to a proper place
The New Act imposes obligations on all persons in the waste supply and transport chain to ensure that waste is taken to a proper place.
In particular:
- those who are handing their industrial waste over to another person must take all reasonable steps to ensure that the waste will be transported to and received at a place authorised to receive it;
- a person must not deposit industrial waste at a place that is not authorised to receive it; and
- a person must not receive waste at a place that is not authorised to receive it.
There are 7 ways to establish a place as a lawful place. A place may be a lawful place:
- in low-risk circumstances specified in the Environment Protection Regulations 2021 (for example, trade waste discharged into a sewerage system in accordance with a trade waste agreement or manure deposited on to land at a rate of less than 20 m3 per month)
- if received in accordance with specifications set out in a determination
- under a declaration of use
- by a permission authorising receipt of the waste
- under a section 48 determination
- by being exempt from the need to hold a permission for receipt of the waste
- by an emergency authorisation.
Determinations are made by EPA and set required specifications for the lawful deposit, transport and/or receipt of industrial waste, subject to set specifications. Premises that receive the specified industrial waste in accordance with the specifications in a determination will be a ‘proper place’ for the receipt of that waste.
Determinations are published on the EPA website. There are determinations currently in place for processed organics, livestock manure and effluent, fill material and recycled aggregates.
A declaration of use (DoU) is a self-assessed declaration that that enables a producer and receiver to meet their lawful place duties for low-risk waste. A DoU may only be used to establish a lawful place for the following:
- the immediate use of waste for resource recovery other than application to land – for example – the use of food waste for animal stock feed;
- the immediate use of waste (but not soil) as a substitute for raw material in a commercial, industrial, trade or laboratory activity, other than application to land – for example, using shredded tyres for a playground surface or reclaimed wood for floorboards;
- the application to land of:
- commercial garden and landscaping organics that do not contain physical or chemical contamination (K300)
- untreated timber, including sawdust (K310 – NH)
- natural organic fibrous waste.
A DoU cannot establish lawful place for reportable priority waste (except waste tyres) or if waste is being received for an activity that needs a permission.
A DoU is a short two-page form that does not require EPA approval, notification or tracking. The person who creates or controls the waste must include the following information in the DoU:
- the waste classification
- risks of harm to human health or the environment
- reasonably practicable steps to minimise those risks.
The waste receiver must declare the receiving premises suitable to use the waste.
Permissions are licenses, permits and registrations – see below for more information. If a site has a permission to receive a certain type of waste, then that site is a lawful place for that waste.
The EPA can make a section 48 determinations that allow a site to undertake a permission activity without holding a permission if they comply with the requirements set out in the determination. They are proposed to be used in limited circumstances, such as where a council receives reportable priority wastes at a transfer station without the need for an A01 licence.
A site can be a lawful place where it is exempt from holding a permission. Sites that receive sewage and wastepaper can be exempt under limited circumstances. The EPA may also grant an exemption from time to time – such exemptions may be applied for on the EPA portal and existing exemptions can be found on the public register.
EPA’s New Permission Scheme
There are three tiers in the EPA’s new permission scheme comprising licenses, permits and registrations. Some sites that previously operated without any licence or permit will now be required to apply and hold one.
For sites that are already operating in the large to medium waste and resource recovery facility thresholds there is a temporary exemption included in the regulations that allows a three-month period in which you have to apply for a license or permit (ie. by 1 October 2021).
For sites that that fit into the registration tier and are currently operating, there is a temporary exemption that allows six months to apply for the applicable registration (ie. by 1 January 2022).
Licenses
Permits
Both licenses and permits will have conditions that will require, inter alia:
- the creation of a risk management plan and an environment emergency management plan;
- monthly reporting on waste throughput and storage;
- the designation of areas on the premises that waste may be stored; and
- the making of financial insurances to cover the cost of any clean-up if the waste were to be stranded or abandoned.
Registrations
Registrations are a simple type of permission which can be automatically granted. They are targeted at the lowest risk activities and have standardized conditions across different activity types. They will also apply to a number of new activity types such as dry cleaning and temporary asbestos storage.
Other Categories
Some waste facility types such as the A13 schedule category will apply if your waste facility is not captured by another prescribed permission activity such as A09 waste tyre storage, A07 organic waste processing or A02 e-waste treatment.
A02 e-waste treatment, for example, sits across all three permission tiers but there are different thresholds based on the types of waste and the volumes received and stored that will trigger the different permission types.
Published on 5 July, 2021