Australia: Waste management reforms proposed for South Australia

Last Updated: 3 November 2016
Article by Nick Thomas and Nicole Besgrove

A consultation draft bill proposes expanded offences, limits on waste stockpiling, tougher sentences for waste related activities, and the wider use of financial assurances. Submissions are due by Friday, 18 November 2016.

The South Australian Government has released the Explanatory paper: consultation draft Environment Protection (Waste Reform) Amendment Bill 2016 which proposes a raft of amendments to the Environment Protection Act 1993 (EP Act) to address illegal dumping and tighten controls on waste in South Australia.

The draft Waste Reform Bill comes after engagement with the waste management and resource recovery industry and other key stakeholders throughout 2015 as part of the Government's waste reform program.

Waste reform program

In March 2015, the Minister for Sustainability, Environment and Conservation, the Hon Ian Hunter, convened the South Australia 2015 Waste Summit which was jointly hosted by the Environment Protection Authority (EPA) and Zero Waste SA as one part of a stakeholder and engagement program regarding the regulatory direction for the waste and resource recovery industry.

Following on from the Waste Summit, the discussion paper Reforming waste management – creating certainty for an industry to grow was released for public consultation in August 2015. It discussed the following impacts which the waste and resource recovery industry identified as requiring regulatory changes and presented options to address those impacts:

  • static or growing stockpiles
  • waste promoted as "product" and issues around ensuring environmental risks are reliably tested
  • potential re-use of "fill materials" ending up at landfill due to development pressures
  • the need to deal with certain problematic wastes
  • illegal dumping.

The next step in the waste reform program was the preparation of the draft Waste Reform Bill to address these impacts and to support growth opportunities in resource recovery in South Australia.

The draft Waste Reform Bill

The draft Waste Reform Bill proposes to amend the objects of the EP Act by inserting the new object "to promote the circulation of materials through the waste management process and to support a strong market for recovered resources and specifically refers to regulating the stockpiling of waste".

The Government hopes that the other proposed amendments will be viewed as aiming to promote this new objective.

Illegal dumping and disposal of waste

Amendments are proposed to allow the EPA to control excessive stockpiling that can create environmental risks, and address the potential for levy avoidance which arises when operators hold material indefinitely without either recovering and selling the materials or disposing of the material to landfill.

The offence of illegal dumping will now include the unlawful disposal of waste which is:

  • the discharge, deposit, dumping, discarding or emission of the waste or matter; or
  • unauthorised stockpiling of the waste or matter; or
  • abandoning the waste or matter; or
  • the escape of the waste or matter; or
  • causing, allowing or failing to prevent the disposal (including in a manner referred to above) of the waste or matter.

Amendments are proposed to clarify that 'waste'1 will not include the following:

  • an approved recovered resource while it is being dealt with in accordance with the declaration of that resource; or
  • anything declared by regulation or by an environment protection policy not to be waste.

These amendments are particularly important because the draft Waste Reform Bill would allow the EPA to impose or vary a condition on an environmental authorisation (such as a licence) imposing a maximum allowable stockpile limit at any time if the EPA considers it necessary to promote the circulation of materials through the waste management process.

This will mean that where the EPA imposes or varies a condition to that effect, continued stockpiling in excess of that maximum allowable amount will trigger the offence provisions for unlawful disposal of waste.

Approved recovered resource

Resource recovery, in relation to waste or other matters, means reusing or recycling the waste or matter or recovering energy or other resources from the waste or matter.

A new process is proposed in the draft Waste Reform Bill to provide certainty to both the waste and resource recovery industry and the EPA to clarify when particular material constitutes a recovered resource and ceases to be a "waste" for the purposes of the EP Act.

A person will be able to apply to the EPA for a declaration that a specified matter constitutes an approved recovered resource and therefore does not constitute waste. A new regulation making power is also proposed to allow the process, including the manner and forms of applications, to be prescribed and to set an application fee. This will be the subject of future consultation after the proposed amendments are made to the EP Act.

Financial assurances

The draft Waste Reform Bill proposes to substitute the existing provisions regarding financial assurances. Currently a financial assurance in the form of a bond (supported by security approved by the EPA), or a specified pecuniary sum, may be required by a condition of an environmental authorisation, the discharge or repayment of which is conditional on the holder of the authorisation:

  • not committing any contravention of the EP Act of a specified kind during a specified period; or
  • taking specified action within a specified period to achieve compliance with the EP Act (for example, clean-up of pollution).

The proposed amending provisions in relation to financial assurances will:

  • enable the EPA to refuse an environmental authorisation if the applicant is required to provide a financial assurance as part of the application and the applicant has failed to provide the financial assurance as required;
  • set out the kinds of financial assurances that may be required, which may now take the form of a policy of insurance where the EPA may require that it be a joint insured or a beneficiary of the insurance and will be taken to have an insurable interest in the subject matter covered by the insurance policy;
  • clarify the purposes for which a financial assurance may be sought to include any costs associated with making good any environmental damage as a result of a contravention; and
  • allow the EPA to amend a licence condition at any time to require a financial assurance. The EPA may require a financial assurance as part of an application for an environmental authorisation and that the financial assurance can extend to when no clean up or remediation is required even after the activity has ceased.

Other amendments

The draft Waste Reform Bill proposes other amendments, the most notable at a glance include:

  • Liability for offences from vehicles: there will be an ability to associate an offence of illegal dumping with a vehicle from which the dumping occurred, and a statutory declaration process will apply which will allow an owner to declare the person responsible for the offence.
  • Powers of authorised officers: the powers of authorised officers will be significantly expanded for:
    • the circumstances in which an authorised officer may enter a premises, for the purpose of identifying, tracking or monitoring waste, including the illegal dumping of waste, using technology such as GPS tracking; and
    • the type of premises which an authorised officer may enter, to cover premises on which there is construction, demolition, excavation or other earthworks, or works to prepare for those activities.
  • Environment protection orders: there will be a continuing default penalty that may be issued for failing to comply with an environment protection order issued to secure compliance with a condition of an environmental authorisation. The EPA may recover a continuing default penalty of one-fifth expiation for each day on which the non-compliance continues.
  • False or misleading information: it is proposed that a maximum two years imprisonment be an alternative to the current $60,000 monetary penalty if a person makes a false or misleading statement.

Making a submission on the draft Waste Reform Bill

Submissions must clearly reference the section and page to which each comment relates and are to be submitted by email or post using the address details specified on the EPA's website.

Once submissions have been considered, a final version of the Waste Reform Bill will be prepared for consideration by the South Australian Government before introduction to Parliament. If passed by Parliament, subsequent amendments to the Environment Protection Regulations 2009 and Environment Protection (Waste to Resources) Policy 2010 will be proposed for approval by the Governor.

Footnote

1 Currently the definition of "waste" is:

  • any discarded, rejected, abandoned, unwanted or surplus matter, whether or not intended for sale or for purification or resource recovery by a separate operation from that which produced the matter and whether or not of value; or
  • anything declared by regulation or by an environment protection policy to be waste,

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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