This alert is relevant to the waste industry, water corporations and local government (waste services and statutory planning).

On 1 July 2009 the commencement of the Environment Protection (Industrial Waste Resource) Regulations 2009 (Regulations) transformed the criteria for prescribed industrial wastes.

Previously wastes were prescribed by a general description of type/origin (for example ‘vegetable, fruit, food processing effluent’). The Regulations introduced criteria for contaminant concentration and leachability to all wastes regardless of origin. The criteria are published in the Industrial Waste Guidelines (Victorian Government Gazette, 6 August 2009) for solid industrial waste and soil. No criteria has been published for liquid industrial waste.

EPA applies the Regulations on the basis that industrial waste in the form of a liquid or slurry is a prescribed industrial waste (Category A) or a trade waste discharged to sewer or a wastewater management facility.

Schedule 1 of the Regulations lists exclusions (industrial waste that are not prescribed industrial wastes irrespective of contaminant concentration or leachability). Schedule 1 lists ‘commercial food waste’. EPA’s consistent approach is that this applies only to solid commercial food waste and not liquid commercial food waste.

In November 2015 the EPA released publication 1606 titled ‘Commercial Food Waste’ (Publication) confirming the EPA’s interpretation that liquid components of commercial food waste are a prescribed industrial waste (Category A). The EPA confirmed this position applies to all liquid waste from food processing, food retail and post consumption.

The Regulations allow the EPA to issue a classification confirming that particular prescribed industrial waste is industrial waste for the purpose of treatment, reuse or disposal. This avoids the legal requirements of works approvals, licensing, vehicle permits and waste transport certificates.

In the past fortnight the EPA has provided written advice on a site specific basis confirming that:

“small packaged liquid commercial food waste is NOT a prescribed industrial waste.”

The EPA confirmed that the Publication will be amended in the coming months.

The clarification distinguishes bulk and intermediate packaging of liquid commercial food waste is excluded. We anticipate that the amendment to the Publication will clarify these exclusions (>1000 litres is a large container and 200-1000 litres is intermediate packaging).

Whether a waste is prescribed industrial waste or industrial waste determines if a works approval, licence amendment or other permission under the Environment Protection Act 1970 is required for facilities producing, storing, reusing or recycling small packaged commercial food waste and for transporters.

Whether a works approval or licence amendment is required is adopted in the Victorian Planning Provisions at clause 66 (Referral and Notice Provisions), which lists the Environment Protection Authority as a determining referral authority.

For existing licensed premises it will be important that the waste acceptance table at schedule 2 of the licence lists ‘industrial waste suitable for treatment at the premises’ or another description that encompasses the small packaged liquid commercial food waste.

While the EPA’s clarification is a departure from the contaminant concentration and leachability criteria, which is risk based, the clarification clearly seeks to strike a pragmatic outcome for a defined low risk waste and remedy what is an existing inconsistency in how different premises are regulated across Victoria.