Australia: New waste regulations now in force in NSW

Last Updated: 21 November 2014
Article by Breellen Warry and Bianca Fernandes

Most Read Contributor in Australia, September 2016

1. Introduction

The Protection of the Environment Operations (Waste) Regulation 2014 (Waste Regulation 2014) commenced on 1 November 2014 following a review by the NSW Environment Protection Authority (EPA) and public consultation.

The Waste Regulation 2014 has replaced the Protection of the Environment Operations (Waste) Regulation 2005 (Waste Regulation 2005).

Waste management in NSW is high on the EPA's agenda, which has established clear targets to boost recycling rates, divert more waste from landfill and reduce the incidence of illegal dumping 1. This includes proposals to undertake waste compliance campaigns as a way of achieving these targets 2.

In addition, during its review of the Waste Regulation 2005, the EPA identified a number of issues including, for example, an increase in intermediary facilities 'rorting' the system through illegal dumping or excessive stockpiling by intermediary facilities as a way of avoiding payment of the waste levy.

These issues and strategic policy objectives have informed a number of the new provisions under the Waste Regulation 2014.

Some of the key changes businesses and landowners operations should be aware of include:

  • changes to the waste levy;
  • changes to waste levy exemptions;
  • broader definition of waste;
  • reduced licensing thresholds; and
  • new offences for transporting waste.

Some of these changes are already in force, while some changes will not come into effect until next year.

In light of these changes and the regulator's policy objectives, it is more important than ever for those businesses and landowners involved in transporting, processing or receiving waste to be aware of requirements which apply to them under waste legislation and ensure they can comply with such requirements.

2. Changes to the waste levy

The Protection of the Environment Operations Act 1997 (POEO Act) requires certain waste facilities in NSW to pay a contribution for each tonne of waste received at the facility.

From 1 August 2015 the levy exemption that applied to storage, treatment and transfer stations will be removed.

The effect is that scheduled waste facilities (i.e. waste facilities that hold a licence) in the regulated area will now be liable to pay the levy. However, the requirement to pay the levy is only triggered where:

  • 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);
  • waste is stockpiled above specified limits; or
  • waste is transported for unlawful disposal.

Otherwise, any liability to pay the levy will be extinguished once the waste is transported back off-site for lawful re-use or disposal.

In addition, from 1 August 2015, all scheduled waste facilities (including recycling facilities) which are not currently required to pay the waste levy will now be required to comply with annual reporting requirements.

2.1 Changes to waste levy exemptions

The range of materials eligible for a levy deduction has been expanded to include materials quarried on-site, or recycled materials that meet the specifications of the Waste Levy Guidelines used at the landfill for:

  • the construction of roads with a wearing surface; or
  • construction works such as hardstands, foundations or infrastructure.

Previously, deductions could only be claimed for asphalt or concrete obtained from a batching plant.

3. Broader definition of 'waste'

Determining whether a material is waste for the purposes of the POEO Act can be a complex exercise. The definition of 'waste' is broad and materials can be regarded as waste, even if they can be reused or recycled.

Clause 6 of the Waste Regulation 2014 contains a list of substances that are prescribed to be waste for the purposes of the POEO Act.

Clause 6(2) has now been expanded to include:

(b) any processed, recycled, re-used or recovered substance produced wholly or partly from waste that is intended to be applied to land......

This has the effect of clarifying and broadening the types of materials that are considered to be 'waste' for the purposes of the POEO Act. In our view, this may also impact upon case law which has held that certain substances specifically set aside for the purpose of re-use, for example, road building materials were not 'waste' 3.

This has implications for transporters of waste, in addition to those receiving materials such as building materials onto their properties. Care should therefore be exercised to ensure that any materials being taken to or received onto a property are not caught by the broader definition of waste, even if it is intended to reuse these materials.

4. Reduced licensing thresholds for waste activities

The Waste Regulation 2014 introduces reduced thresholds which trigger a requirement for an environment protection licence (EPL) for the processing, recovery and storage of waste.

These changes are set out in the below table.


Previous thresholds

Waste Regulation 2014 thresholds

Resource recovery

The lesser of 2500 tonnes or 2500 m3 on-site at any one time, processing of 120 tonnes a day or 30,000 tonnes a year

1000 tonnes or 1000 m3 on-site at any one time, processing more than 6000 tonnes a year (Regulated Area)

2500 tonnes or 2500 m3 on-site at any time, processing more than 12,000 tonnes a year (Outside the regulated Area)

Waste processing (non-thermal treatment)

The lesser of 2500 tonnes or 2500 m3 on-site at any one time, processing of 120 tonnes a day or 30,000 tonnes a year

1000 tonnes or 1000 m3 on-site at any one time, processing more than 6000 tonnes a year(Regulated Area)

2500 tonnes or 2500 m3 on-site at any time, processing more than 12,000 tonnes a year (Outside the regulated Area)

Waste storage

The lesser of 2500 tonnes or 2500 m3 stored on-site at any one time, or receiving 30,000 tonnes a year

1000 tonnes or 1000 m3 stored on-site at any one time, processing more than 6000 tonnes a year(Regulated Area)

2500 tonnes or 2500 m3 on-site at any time, processing more than 12,000 tonnes a year (Outside the regulated Area)

This means that certain operators who previously did not require an EPL may now be required to obtain one from the EPA. The POEO Act makes it an offence for a person to carry out a scheduled activity without an EPL, with fines of up to$1,000,000 for corporations.

A 9 month transition period has been provided to operators that are required to be licensed in which to obtain an EPL. Operators should therefore review threshold levels and determine whether they now require an EPL as soon as possible.

5. Offence for the transport of waste

It is now an offence to transport waste generated in NSW by motor vehicle to any place, in or outside NSW, if the place is more than 150km from the origin of that waste, or one of the two nearest lawful disposal facilities. Restricted solid waste must be taken to the closest lawful disposal facility for that waste.

In addition, from 1 March 2015, waste tracking requirements will apply to more than 10 tonnes of waste generated from the metropolitan levy area that is transported outside of NSW.

6. What does this mean for my business?

It is important that all generators, transporters and processors of waste, operators of landfill facilities and certain landowners understand the new requirements and obligations that the Waste Regulation 2014 creates.

Operators and land owners who previously were not regulated may now be caught by the Waste Regulation 2014. Therefore, those who are currently involved in transporting, processing, storing or receiving materials onto their property should review their operations now and ensure that they are complying with the relevant requirements of the Waste Regulation 2014. This is important as there are heavy fines under the Waste Regulation 2014 and POEO Act for failure to comply with obligations under waste legislation. Also, as mentioned, compliance is high on the EPA's agenda.

We can provide further specific advice in relation to any of the new obligations and requirements to suit your operational needs. Please contact Breellen Warry to assist you with such advice and, in particular, how these changes will affect your business.


1EPA Strategic Plan 2013 – 2016.

2NSW Illegal Dumping Strategy 2014-16

3For example, see Environment Protection Authority v Terrace Earthmoving Pty Ltd [2013] NSW CCA 180.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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