Australia: Commencement of significant changes to Waste Regulations to impact entire chain of waste generation and disposal in NSW

Last Updated: 11 November 2014
Article by Jacinta Studdert, Noni Shannon and Nicole Woods

Introduction

The Environment Protection Authority (EPA) has recently undertaken a review of the waste regulatory framework in NSW. This has included a review of the associated regulations under the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) which is the primary environmental pollution legislation regulating waste in NSW.

As a result, a number of significant amendments to the waste regulatory regime have been introduced by the Protection of the Environment Operations (Waste) Regulation 2014 (NSW) (Waste Regulation) and the Protection of the Environment Operations (Waste) Amendment (Contributions) Regulation (NSW) 2014 and started to take effect from 1 November 2014. The changes were developed in conjunction with public consultation from 23 April 2014 to 6 June 2014.

The Waste Regulation comes at a time when the EPA is particularly concerned with activities relating to the transporting, processing and disposal of waste. For example, the EPA has recently increased penalties under the POEO Act for waste offences which came into effect from 29 August 2014 and has introduced a new offence for repeat waste offenders which includes a jail sentence of up to two years. The Waste Regulation adds to these changes by creating additional obligations and requirements that will impact on all those who generate, transport and dispose of waste. Penalties will apply for non-compliance.

Summary of changes to the waste legislation

The primary changes introduced by the Waste Regulation are:

Item Date change will commence Summary of change
1. 1 November 2014 Implementation of a proximity principle for the offence of transporting waste
2. 1 November 2014 Introduction of a land pollution defence for unlicensed landfills
3. 1 November 2014 Additions to operational purpose deductions
4. 1 November 2014 Improving resource recovery exemptions
5. 1 November 2014 Improving immobilisation of high-risk contaminants
6. 1 November 2014 Prescribed wastes for land pollution offence
7. 1 November 2014 Prescription of wastes that automatically constitute land pollution
8. 1 November 2014 Reduced licensing thresholds for waste activities (with a 9 month transition period)
9. 1 March 2015 Waste tracking for waste transported outside of NSW
10. 1 July 2015 Waste tyre monitoring and licensing (with a 9 month transition period)
11. 1 July 2015 Asbestos waste monitoring requirements
12. 1 August 2015 Reforming the waste levy framework
13. 1 August 2015 New reporting requirements for waste facilities

More detail of the changes to the waste legislation

The Waste Regulation will impact all generators, transporters and processors of waste and all those who dispose of waste.

The changes create more onerous obligations for waste generators who must report and track more of their activities and may now require an environment protection licence for their activities. Further, waste generators will also need to consider that some wastes will automatically constitute land pollution and they will be required to comply with new levy requirements. The Waste Regulation will also assist the EPA in monitoring participants in the waste sector to ensure compliance with legislation.

The changes create more onerous obligations for waste processors, transporters and those who dispose of waste such as the requirement for designated waste certificates for high-risk contaminants, additional tracking of waste, monitoring tyre and asbestos waste and annual reporting for waste facilities. These changes come at a time when changes to the POEO Act also propose additional waste tracking requirements such as requiring transporters of waste to install, use and maintain GPS tracking devices on motor vehicles used to transport waste. There are also a number of advantages for waste processors and those who dispose of waste as a result of the changes such as more materials being eligible for levy deductions and defences for operators of unlicensed landfills.

The changes are intended to strengthen waste legislation by promoting environmental and human health, for example through encouraging the recycling of material and reducing the amount of waste that can be stored on properties. The changes are also designed to maintain the "integrity of the waste levy framework" by ensuring that waste generated in NSW is processed within NSW.

  1. The proximity principle for the offence of transporting waste
  2. From 1 November 2014, it will be an offence to transport waste generated in NSW by motor vehicle for disposal more than 150 km from the place of generation, unless the waste is transported to one of the two lawful disposal facilities nearest to the place of generation. This proximity principle aims to address the environmental and human health impacts of unnecessary transportation of waste over long distances. For the purpose of this offence, the transport of waste includes to cause or permit waste to be transported. Fines for this offence will range from $7,500 for individuals to $15,000 for corporations and, a conviction for this offence may attract a penalty of up to $44,000.

    Defences will be available in certain circumstances for this offence. It will be a defence if the waste was transported:

    • for lawful and genuine recycling, resource recovery, energy recovery, processing or re-use; or
    • in an emergency to protect human health, the environment or property; or
    • as part of an approved mandatory product recall.

    Further, it will not be an offence to transport waste to a lawful waste facility that is located in another state or territory if there is a border crossing within 150km of the place the waste was generated.

    The proximity principle relates to the transport of waste by road and does not restrict the transport of waste by alternative means such as rail.

  1. Land pollution defence at unlicensed landfills
  2. From 1 November 2014, it will be a defence for operators of unlicensed landfills if, at the time of the alleged land pollution, the operator maintained certain minimum operational standards at their facility. These operational standards at the landfill require that all reasonable steps are taken to:

    • minimise the emission of an offensive odour or noise beyond the boundaries of the site;
    • avoid discharges causing water pollution;
    • ensure that any plant that is used for the purposes of disposing of, or moving or covering waste is properly maintained to avoid land pollution;
    • ensure that any plant that is designed to control or prevent land pollution is maintained in an efficient condition;
    • secure the site against uncontrolled public access;
    • minimise the tracking of dust or mud from the site to any public road providing access to the site; and
    • minimise the risk of fire.

    Additionally, the requirements relating to covering any asbestos waste, and those relating to the disposal of clinical or related waste, must also be complied with.

    This defence is intended to address the varying operational practices at unlicensed landfills across NSW and encourage the improvement of standards at those unlicensed landfills.

  1. Operational purpose deductions
  2. From 1 November 2014, the range of materials eligible for a levy deduction is expanded to include materials used for road-making or construction works. An occupier of a licensed landfill (not just the licensed operators), who is required to pay a contribution under section 88 of the POEO Act, will be able to claim an operational purpose deduction for quarried materials on-site, or recycled material that meets the specifications of the Waste Levy Guidelines. As a result, landfills will be able to use recycled road-base and virgin material sources from a quarry without attracting a levy liability for the road-making or other construction works that it undertakes at that landfill.

  1. Improving resource recovery exemptions
  2. From 1 November 2014, the previous general and specific resource recovery exemptions are replaced by a Resource Recovery Order or a Resource Recovery Exemption respectively. Both documents will include conditions which must be complied with to beneficially apply the waste to land, use it as fuel or in connection with thermal treatment, as well as specifications for record-keeping and reporting.

  1. Improving immobilisation of high-risk contaminants
  2. From 1 November 2014, generators or processors of waste that is subject to an immobilised contaminants approval must issue a designated waste certificate confirming the waste has been treated in accordance with EPA requirements for lawful re-use or disposal. An immobilisation order will then be issued to the receiving facility by the EPA or it will be published in the Government Gazette.

  1. Prescribed wastes for land pollution offence
  2. From 1 November 2014, certain wastes will automatically constitute land pollution under section 142A of the POEO Act. These wastes are hazardous waste, restricted solid waste, asbestos waste (where greater than 10 tonnes) and waste tyres (where greater than 5 tonnes or more than 500 tyres). The penalties and defences in the POEO Act will remain for this offence.

  1. Reduced licensing thresholds for waste activities
  2. From 1 November 2014 (with a 9-month transition period), lower thresholds have been introduced which will trigger the requirement for an environment protection licence (EPL) for the processing, recovery and storage of waste. The lower thresholds are intended to ensure there is a level playing field across the waste industry. For example, while previously 2500 tonnes of waste could be stored at any one time without the requirement for an EPL, under the Waste Regulation, this threshold is reduced to only 1000 tonnes.

  1. Waste tracking for waste transported outside NSW
  2. From 1 March 2015, waste consignors and waste transporters will be required to track waste generated from the metropolitan levy area that is transported interstate (where greater than 10 tonnes). The waste consignors and transporters will be required to use the existing EPA online waste tracking system to lodge details about the consignment.

  1. Waste tyre monitoring and licensing
  2. From 1 July 2015, waste consignors and waste transporters of waste tyres will be required to monitor the movement of waste if the loads are greater than 200 kilograms or more than 20 waste tyres, whichever weighs less. A disposal facility will be required to confirm details of receipt of the waste tyres. The thresholds for requiring an EPL for this activity will also be reduced significantly, for example, from 50 tonnes of waste tyres stored on site to 5 tonnes. This provision has a 9 month later commencement date compared to the majority of the other provisions to assist facilities that will need to apply for an environment protection licence for these activities.

  1. Monitor asbestos waste
  2. From 1 July 2015, transporters of waste will be required to record movements of more than 100 kg of asbestos waste or more than 10 square metres of asbestos sheeting. Reporting will include information relating to the site of generation, the amount and final disposal of the waste and the disposal facility will be required to record additional information as to receipt of the asbestos waste.

  1. Waste levy framework
  2. From 1 August 2015, the Protection of the Environment Operations (Waste) Amendment (contributions) Regulation 2014 will amend the Waste Regulation so that the levy exemption that applies to waste storage, treatment and transfer facilities will be removed. This follows the introduction of the Protection of the Environment (Illegal Waste Disposal) Act 2013 in September 2013 which removed the levy exemption for scheduled waste facilities involving the re-use, recovery, recycling or processing of waste.

    As a result, from 1 August 2015 operators of scheduled waste facilities will hold a levy liability on all waste received at their facility, but this liability will be extinguished once the waste is transported back off-site for lawful re-use or disposal. Payment of the levy will, however, be required when:

    • Waste is stockpiled on-site for more than 12 months unless the waste has been processed at the facility to a standard required by a resource recovery order; or
    • Waste is stockpiled above the lawful limit; or
    • Waste is transported for unlawful disposal.
  1. New reporting requirements for waste facilities
  2. From 1 November, the mechanism requiring annual reporting by non-paying landfills and landfills outside the regulated area has been overhauled and the previous exclusion of being "otherwise than for business or commercial purposes" removed.

    From 1 August 2015, this requirement will be extended from applying solely to landfills to also apply to any non-paying scheduled waste facilities as well.

A copy of the new Waste Regulation can be viewed here, and the Protection of the Environment Operations (Waste) Amendment (Contributions) Regulation 2014" here ,

A copy of the EPA's Supplementary Regulatory Impact Statement can be viewed here. Additionally, the EPA has released fact sheets in relation to the main changes to the Waste Regulation which can be viewed here.

Next steps

We recommend that all generators, transporters and processors of waste, and those responsible for the disposal of waste, ensure they are aware of, and are able to comply with, the changes and the new obligations under the Waste Regulation. This may need to include a broad review of compliance policies and systems and commercial contracts.

Our Norton Rose Fulbright team are recognised as leading advisers to the waste sector throughout Australia and act for international and domestic entities and all levels of Government in relation to the full spectrum of the waste generation, management and disposal chain. We would be delighted to assist you with specific advice on the relevance of the proposed changes to your business, including approval and licensing requirements and impacts on existing agreements.

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