Australia: Waste regulation reform in NSW targets storage, transportation and licensing

Clayton Utz Insights

Key Points:

NSW waste industry stakeholders may need to adapt operations to comply with new limitations on the movement of waste and lower licensing thresholds.

On 1 November 2014, the Protection of the Environment Operations (Waste) Regulation 2014 introduced a number of amendments to the waste and resource recovery regulatory framework in NSW, which include:

  • a restriction on the transportation of waste from its point of origin;
  • new waste triggers that automatically constitute land pollution;
  • lower licensing thresholds for waste activities; and
  • additional tracking, monitoring and reporting requirements.

In the wake of these reforms:

  • waste generators and transporters must immediately review the proximity of the waste disposal facility to which they transport waste; and
  • waste facility operators must review licensing requirements and obtain an environment protection licence (EPL) before 31 July 2015 if they trigger the new thresholds.

New waste transport offence

A regional approach to waste transportation has been introduced through the use of a "proximity principle". The principle confines the responsibility of waste disposal to a limited geographical area from where the waste is generated.

The proximity principle underpins the new offence for transporting waste in NSW by motor vehicle for disposal more than 150 kilometres from where it was generated (Prescribed Area). Some exemptions apply, including where waste is transported to:

  • one of the two nearest lawful disposal facilities which is located more than 150 kilometres from the place of waste generation; or
  • a waste disposal facility within another State or Territory if there is a border crossing within the Prescribed Area.

The applicability of this offence is broad. Transporting waste includes causing or permitting waste to be transported. Consequently, all waste generators and transporters should immediately assess their operations and review their waste disposal contracts to ensure waste disposal is conducted within the Prescribed Area.

The Waste Regulation introduces maximum penalty notice fines of $15,000 for corporations and $7,500 for individuals and higher penalties may be imposed by a court on conviction.

Clarifying land pollution offence

The general land pollution offence under Protection of the Environment Operations Act 1997 has be expanded through amendments to the Protection of the Environment Operations (General) Regulation 2009 to include the following types of waste in order to discourage illegal dumping activities:

  • hazardous waste;
  • restricted solid waste;
  • >10 tonnes of asbestos waste; and
  • > 5 tonnes of waste tyres or more than 500 waste tyres.

Maximum penalties can be up to $1 million for a corporation (and a further penalty of $120,000 for each day the offence continues) or, in the case of an individual, $250,000 (and a further penalty of $60,000 for each day the offence continues).

In addition, in order to combat the wide variation in operational practices at old unlicensed landfills, the Government has created a new defence to the land pollution offence. This defence will allow operators to avoid prosecution where they can demonstrate they have maintained certain minimal operational standards at the time of the alleged offence.

Lower licensing thresholds

Resource recovery, waste processing (non-thermal treatment) and waste storage activities now require an environment protection licence (EPL) when the following thresholds apply:

  • 1000 tonnes or 1000 m3 on-site at any one time, processing more than 6000 tonnes a year (Regulated Area); or
  • 2500 tonnes or 2500 m3 on-site at any time, processing more than 12,000 tonnes a year (Outside the Regulated Area).

Waste facility operators should review their processing, recovery and waste operations to verify whether the new, lower thresholds apply to current operations.

The Government has provided a nine-month transition period from 1 November 2014 to 31 July 2015 to allow for facility operators to determine the applicability of the new thresholds and obtain an EPL if required.

Reform in 2015

A number of changes will commence in 2015 under the Waste Regulation, including from:

  • 1 March, the generation of more than 10 tonnes of waste from the metropolitan levy area and transported outside of NSW will require monitoring via the existing EPA online waste tracking system;
  • 1 July, transportation of asbestos loads will be assigned a unique consignment code to allow the EPA to monitor the load from the site of generation to disposal; and
  • 1 August, scheduled waste facility operators will hold a waste levy liability when it is received at the facility and occupiers of licensed landfills will have to report to the EPA on the type and amount of waste received and disposed (even when not required to pay the waste levy). For scheduled facility operators, the payment of the levy will be triggered where waste is:
    • stockpiled on-site for more than 12 months (unless it has been processed to a standard required by a resource recovery order);
    • stockpiled above lawful limits; or
    • transported for unlawful disposal.
    • The intent of this amendment is to remove the incentive to stockpile, misclassify or illegally dump non-recyclable waste and shift the levy liability from the landfill gate to the recycling gate. Exemptions from this requirement are available for particular types of facility such as liquid waste, composting, contaminated soil treatment, hazardous waste and restricted solid waste facilities.

In association with changes under the Waste Regulation, the EPA has recently updated its Waste Levy Guidelines.

Waste industry stakeholders must ensure all current operations comply with the new Waste Regulation requirements.

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

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