On 22 November 2017, HopgoodGanim Lawyers presented a seminar on some interesting changes in the world of waste - the amendments to the end of waste framework and the review of waste-related ERAs and regulated waste classification system. Major points to note are summarised below.

Amendments to the End of Waste framework

On 13 September 2017, notable amendments were made to the End of Waste (EOW) framework set out in the Waste Reduction and Recycling Act 2011 (WRR Act). Some of those amendments include:

  1. An EOW Code and EOW Approval can now include conditions for the end-user of a resource. Previously, end-users have not been regulated. This amendment has consequences including that executive officers of corporations using resources are now potentially in the frame for offences under the WRR Act.
  2. If a person no longer uses a resource in accordance with an EOW Code or EOW Approval, the person is no longer a “resource user” and the resource reverts to being a waste. This change seeks to discourage the intentional misuse of codes or approvals to subvert waste management requirements.
  3. The offence provisions have been strengthened so that all registered resource producers are liable for the offence of not complying with an EOW Code, even if they use the resource themselves. Further, offence provisions now exist if a person uses a resource in an unauthorised manner or if a resource user does not comply with the conditions of an EOW Code or EOW Approval. For EOW resource users, it is imperative to obtain a copy of the relevant EOW Code or EOW Approval to ascertain whether any conditions apply to the use of the resource. Applicants for EOW Approvals should think carefully and commercially about any conditions imposed on end users, as the conditions may impact on the ability to find suitable willing users for the resource.
  4. The EOW Approval sections have largely been re-written with revisions including:
    1. Whether the proposed management of the waste or use of the resource is likely to cause environmental nuisance is a new decision making criteria in assessing an application for an EOW Approval or assessing an application to amend an EOW Approval.
    2. Causing or being likely to cause environmental nuisance is also a new ground for the suspension or cancellation of an EOW Approval.
    3. The timeframe for deciding an application for an EOW Approval has increased from 20 business days to 40 business days (which may be extended by a further 20 business days).
    4. An application to extend the currency period of an EOW Approval must now be made at least two months before the approval is due to expire (previously it was one month before).
    5. There is now a 20 business day timeframe for the chief executive to decide an application to extend an EOW Approval (previously no timeframe was prescribed).
    6. There is a streamlined process for making a “minor amendment” to an EOW Approval. “Minor amendments” do not involve a change to the characteristics of the resource, do not relate to the use of the resource, do not significantly increase environmental harm caused by the use of the resource or do not adversely affect the interest of the holder or another person.

Waste Related ERAs and the regulated Waste Classification System

The Department of Environment and Heritage Protection is undertaking a review of the waste related ERAs and the regulated waste classification. The Regulatory Impact Statement was released in June 2017 and is still available on the Department’s website.

Waste Related ERAs

The proposed changes seek to reduce the number of waste related ERAs. The 12 current ERAs will be streamlined into five ERAs. The five proposed ERAs are:

Proposed ERA Description
ERA 53 Organic waste processing Captures all composting and anaerobic digestion activities. All existing ERA 53 approvals for composting or soil conditioner manufacturing will be regulated under this ERA.
ERA 55 Waste processing or treatment This ERA captures a range of waste processing, recycling and treatment activities. Activities currently regulated under existing ERAs 20, 33, 55, 58, 59, 61 and 62 may be captured within this ERA. Processes such as pyrolysis and gasification will also be captured here.
ERA 57 Waste transport This ERA will continue to capture all existing regulated waste and tyre transport activities. Operators commercially transporting general waste will also be captured by this ERA.
ERA 60 Waste disposal All existing ERA 60 waste disposal approvals will remain captured under this ERA.
ERA 62 Resource recovery and waste transfer ERA 62 captures low level risk waste transfer and resource recovery activities. It allows for sorting, dismantling, baling and the associated temporary storage of waste. Activities currently regulated under existing ERA 20, 56 and 62 may be captured within this ERA. Storage of end-of-life tyres will also be captured under this ERA.

All existing activities will continue to be captured. In addition, new activities will be regulated, as summarised below:

New Activity New ERA New ERA Criteria
Tyre Storage ERA62(3) Storing greater than 4t or 500 equivalent passenger units (EPUs) of tyres at any one time.
Anaerobic digestion ERA 53(2)

Sites receiving greater than 200t of organic material per year for the purpose of operating an anaerobic digester.

Does not capture anaerobic digestion of material produced onsite in relation to an existing ERA such as a waste water treatment plant or abattoir.

Waste transfer

(receiving less than 30t or 30m3 of waste per day)

ERA 62(2a) or

ERA 55(1a)
Waste transfer station facilities receiving less than 30t or 30m3 per day do not currently require an ERA approval. This requirement has been removed and all commercial waste transfer station facilities will require an ERA approval.
General waste transport ERA 57(3) Persons commercially transporting general waste in loads greater than 750kg must obtain an approval.

Proposed regulated waste classification system

Regulated wastes are currently listed in Schedule 7, Part 1 of the Environmental Protection Regulation 2008. The Schedule 7 list is considered an ‘absolute’ list and any waste that meets the regulated waste definition, and contains a trace of any of the items listed in Part 1, is classified as a regulated waste. The classification is made irrespective of the volume or concentration of the Part 1 items present in the waste.

Under the proposed new system, regulated waste will be classified into one of four categories:

  • category 1 regulated waste (highest risk);
  • category 2 regulated waste;
  • category 3 regulated waste; or
  • not-regulated (NR) (lowest risk).

Each waste category will be based on threshold values for the identified hazard parameters. The threshold values are said to be based on best practice national and international standards.

To establish the particular category, waste generators will have the option of either:

  • adopting a default waste category for their waste (set out in the attachments to the Regulatory Impact Statement); or
  • testing for parameters of known constituents and comparing the results to the threshold values to determine the waste category.

Method one will not require laboratory testing but, because it relies on default categories, a “precautionary factor” is applied which may result in the waste being classified into a higher risk category. If a waste has multiple hazard parameters, it will default to the highest risk category.

Method two will be more complex and there are costs for operators as it relies on lab testing. The advantage is that it will provide an opportunity to ‘down-grade’ the category of regulated waste or remove it entirely from regulated waste categorisation.

Formal consultation on the proposed changes to the regulated waste ERAs and regulated waste classification system is now closed. The Department’s website indicates that it will evaluate feedback received to further determine the costs and benefits of the proposed framework.

For more information or discussion, please contact HopgoodGanim Lawyers’ Planning and Development team.