In 2013, NSW committed over $450 million to fund its waste infrastructure for the next 50 years. The new Protection of the Environment (Waste) Regulation 2014 and associated instruments are intended to protect that investment with a range of tough new obligations and penalties. We identify some of the key reforms that may impact your organisation.
Waste disposal and the “proximity principles”
In a bid to reduce the risks associated with waste movement, it is now an offence to transport waste by road for disposal more than 150 kilometres from where it was generated. This “proximity” principle will apply to any person moving waste both within and outside NSW. If there is no suitable place to accept the disposal within the 150 km radius, then the waste may be taken to either the nearest or second nearest location outside that zone.
A breach of the proximity rule attracts fines up to $15,000 (corporations) and $7,500 (individuals) if imposed by way of penalty notice, and up to $44,000 if imposed by a court. The figure [below] helps illustrate what the “proximity principle” looks like for NSW’s major city centres.
Click here to view image.
Waste-stream specific changes
In a bid to tackle two pervasive waste issues - asbestos and waste tyres - the new waste regulations target the movement and disposal of these two waste streams with highly prescriptive obligations.
For asbestos waste, all movements of more than 100kg of asbestos waste or 10m2 of asbestos cement sheeting will need to be tracked from June 2015.
The offence of pollution to land now automatically applies in circumstances where more than 10 tonnes of asbestos waste are present on your land. Duty holders found to have waste in such volumes will be deemed to have committed an offence and may be liable for fines up to $1,000,000 (or $250,000 for an individual).
These obligations may also attract special executive liability under section 169 of the Protection of the Environment Operations Act 1997 (NSW). This means that if your corporation has contravened the relevant waste provision, then each director and person involved in the management of the corporation is taken to have contravened the provision themselves unless they can prove, either:
- they were not in a position to influence the relevant conduct; or
- they had used all due diligence to prevent the contravention.
This provision contains a reverse onus of proof and generates a requirement that your management develop appropriate due diligence processes and take proactive steps to avoid individual liability. These obligations will apply in addition to controls in place under the Work Health and Safety Regulations 2011 (NSW).
The same “automatic offence” will apply to people storing more than 5 tonnes or 500 units of waste tyres. Large stockpiles of waste tyres have been identified as a major potential hazard to both the community and the environment. Waste tracking will also apply to the movement of more than 20 waste tyres (or 200 kgs of types) with fines up to $22,000 for failing to comply with tracking requirements.
Licence thresholds for the number/ volume of waste tyres that may be stored at a site has been dramatically reduced from 50 tonnes (of 5,000 types) to just 5 tonnes (or 500 tyres). If you operate a fleet, particularly including heavy vehicles, then we recommend you review the current management of waste tyres in all depots and maintenance locations, as the thresholds may be easily reached for larger tyres and affect the day-to-day management of this waste stream.
Waste storage thresholds reduced
The storage of waste in quantities above the thresholds specified by law requires an environmental licence from the EPA. This applies to any site storing waste, whether or not the operators consider their site to be a waste storage facility. Simply permitting waste to accumulate may trigger the licensing obligation.
Under the new regulations, the threshold volume that will determine whether or not your site needs a licence has been reduced from 2,500m3 to 1,000m3 of waste present on your site at any one time. Further, thresholds apply to the total volume that may be stored in total over a year, and more generous thresholds apply for facilities that are outside NSW’s regulated waste areas.
You should review your production cycle to ensure that the 1,000m3 threshold is not breached at any point during the year.
Waste tracking extended to non-hazardous waste
Anyone consigning or transporting nonhazardous waste outside the State in volumes exceeding 10 tonnes will be required to comply with online waste tracking obligations from March 2015. The aim of the change is to enable the EPA to gather data on these waste movements. The change may also provide a disincentive to the current practice of transporting such waste across the border to Queensland to take advantage of significantly lower waste disposal fees.
What should you do next?
The widespread nature of these changes should prompt your organisation to review its current approach to waste management and compliance. Your review should include:
- reviewing all waste streams for your sites;
- reviewing and updating your waste management policies and procedures;
- retraining staff to ensure they understand the changes; and
- consulting with your contractors to ensure they are across the changes.
The NSW Government has invested a considerable sum to improve its management of waste over time and has set ambitious waste-reduction targets as part of that program. In this context, it is likely the EPA will seek to protect and realise the full value of that investment through targeted enforcement action. Ensure your organisation, its people and contractors are fully prepared by making waste management improvement a priority for 2015