Australia: Major clean-up of waste regulation in South Australia

Major changes to waste management legislation have now commenced in South Australia targeting waste facilities, stockpiling and illegal dumping.

The Environment Protection (Waste Reform) Amendment Act 2017 commenced on 28 November 2017 which amends the Environment Protection Act 1993 (EP Act) to address illegal dumping, limit waste stockpiling and tighten controls on waste in South Australia.

Waste reform program

We have previously examined the waste reform program which has been progressed in South Australia commencing with the South Australia 2015 Waste Summit followed by a discussion paper on reforming waste management in the same year and consultation on the draft Environment Protection (Waste Reform) Amendment Bill 2016 in October 2016.

Following consultation on the draft Bill, the final version was introduced to the South Australian Parliament on 9 August 2017 and was passed on 31 October 2017 (to be referred to as the Waste Reform Act).

What is waste?

The Waste Reform Act has inserted the following definition of "waste" into the EP Act:

  • any discarded, dumped, 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; or
  • any matter declared by regulation to be waste for the purposes of the EP Act (following consultation by the Minister on the regulation with prescribed bodies in accordance with the regulations); or
  • any matter declared by an environment protection policy to be waste for the purposes of the EP Act, whether or not of value.

However, "waste" does not include an approved recovered resource while it is being dealt with in accordance with the declaration of that resource or anything declared by regulation or an environment protection policy not to be waste for the purposes of the EP Act.

This exception is a welcome change. It should resolve many disputes as to what constitutes waste in circumstances where there is an intent to process a waste and then sell it as a product, which was the subject of a recent appeal in the Supreme Court of South Australia (Wood v Adelaide Resource Recovery Pty Ltd (2017) 127 SASR 296; (2017) 222 LGERA 59; [2017] SASCFC 13).

Approved recovered resource

The Waste Reform Act has introduced a new concept of resource recovery in relation to waste or other matter which involves reusing, recycling, or recovering energy or other resources from, the waste or other matter.

There is now a process which allows the Environment Protection Authority (EPA) to declare that specified matter constitutes an approved recovered resource. Once a declaration is made in that regard, that specified matter will not be waste for the purposes of the EP Act while it is being dealt with in accordance with the declaration.

Regulations have not yet been made to support these changes, however regulations can provide for range of matters in relation to approved recovered resource declarations including, but not limited to, the manner and form of applications for declarations, the criteria against which applications will be determined, the imposition of conditions of declarations, grounds for refusal of an application for declaration and the variation or revocation of declarations.

Illegal dumping and disposal of waste

With respect to the general environmental duty not to undertake an activity that pollutes, or might pollute, the environment, the disposal of waste has been included to capture illegal dumping of waste by an occupier or person in charge of a place or vehicle. Disposal of waste or other matter includes stockpiling or abandoning the waste or other matter.

There is now also the ability to associate an offence of illegal dumping with the owner of the vehicle from which the dumping occurred, and a statutory declaration process applies which will allow an owner to declare the person who they believe is responsible for the offence.

While failure to comply with the general environmental duty does not of itself constitute an offence:

  • compliance with the duty may be enforced by the issuing of an environment protection order; and
  • a clean-up order or clean-up authorisation may be issued, or an order may be made by the Environment, Resources and Development Court, in respect of non-compliance with the duty.

EPA's powers

The Waste Reform Act has now inserted a range of new and expanded EPA powers relating to the following:

  • Entering premises: the type of premises which an authorised officer may enter and inspect for any reasonable purpose connected with the administration or enforcement of the EP Act now include premises on which there is, or has been, construction (which includes alteration or refurbishment), demolition, excavation or other earthworks where the works or activity has, or may have disturbed, uncovered or produced waste or pollutants of a kind described by regulation or a potentially contaminating activity has previously taken place there.
  • Special warrant powers: an authorised officer may apply to a judge of a Supreme Court for a warrant authorising the authorised officer to exercise special powers including marking waste or other matter found in the specified premises and retrieving that marked waste or other matter, installing a camera in, on or in relation to, a specified premises or vehicle and installing a GPS device in, on or in relation to a specified vehicle or class of vehicle.
  • Financial assurance conditions: the EPA's power to impose conditions on environmental authorisations to require the holder of that authorisation to provide to the EPA a financial assurance has been clarified (discussed further below).
  • Stockpile limits: the EPA may impose or vary a condition on an environmental authorisation to impose 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.
  • Closure and post-closure plans: the EPA may impose conditions requiring closure and post-closure plans where reasonably required for the purpose of dealing with stockpiled or abandoned waste or other matter that may result from the authorised activity after it has ceased. This is in addition to the EPA's ability to impose such a condition the purpose of preventing or minimising environmental harm that may result from the activity undertaken pursuant to the authorisation after the activity has ceased.

Financial assurances

Prior to the commencement of the Waste Reform Act, a financial assurance in the form of a bond (supported by security approved by the EPA), or a specified pecuniary sum, could be required by a condition of an environmental authorisation, the discharge or repayment of which was 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).

With the commencement of the Waste Reform Act, the financial assurance provisions now:

  • allow the EPA to impose or vary a condition requiring financial assurance at any time;
  • 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;
  • allow the holder of an authorisation to provide a financial assurance in the form of a policy of insurance, a letter of credit or a guarantee given by a bank or any other form of security approved by the EPA in addition to a bond or a specified pecuniary sum; and
  • clarify what the EPA must have regard to when determining whether or not to impose or vary a condition requiring financial assurance, which includes (amongst others) the degree of risk of environmental harm or unauthorised stockpiling or abandonment of waste or other matter for the activity the subject of the authorisation or any activity previously undertaken at the place to which the authorisation relates, the likelihood of action required and cost to make good any resulting environmental damage and any previous contraventions of the EP Act by the holder of the authorisation.

Other changes

The Waste Reform Act introduces a new a continuing default penalty which may be issued for failing to comply with an environmental protection order issued to secure compliance with a condition of an environmental authorisation. If the alleged offender has expiated the offence and the act or omission the subject of the environmental protection order continues after that expiation, the EPA may recover a continuing default penalty (as a debt) of one-fifth expiation for each day on which the non-compliance continues.

The ability of the Governor to make regulations to provide for certain matters has been expanded to include (amongst others) those matters relating to the identification or tracking of waste or other matter or the handling, storage, treatment, transfer, transportation, receipt or disposal of waste or other matter at depots, facilities, works or any other place including:

  • the weighing, calculation and certification of mass or volume of the waste or matter; and
  • the monitoring of the handling, storage, treatment, transfer, transportation, receipt or disposal of the waste or matter; and
  • the installation, use or maintenance of cameras at depots, facilities or works; and
  • the installation, use or maintenance of GPS devices in or in relation to vehicles of a prescribed class (including, but not limited to, vehicles used in the course of a prescribed activity of environmental significance); and
  • the prevention of tampering with such cameras or GPS devices; and
  • the access, use or retention by the Authority or another administering agency of information collected by such cameras or GPS devices.

Implications of SA's new waste laws

The legislative reforms generally bring South Australia into line with the waste management approaches taken by the EPA in other jurisdictions (particularly NSW). They reflect a national trend towards tougher controls on waste activities, securing financial assurances and insurance for compliance with waste management obligations, and broader flexibility for regulators in responding to specific situations in waste management.

If you would like advice on how the changes to waste management in South Australia will affect you or your organisation please contact us.

RELATED KNOWLEDGE

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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