On 1 November 2014, the majority of the provisions of the Protection of the Environment Operations (Waste) Regulation 2014 (NSW) (New Waste Regulation) came into force. While the New Waste Regulation introduces a suite of reforms, the key changes for the waste industry are as follows:
- a ban on the transportation of waste more than 150km from the place of generation;
- a requirement for transporters of asbestos waste to report its movements to the NSW Environment Protection Authority (EPA);
- the prescribing of certain types of waste that automatically constitute “land pollution” under section 142A of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act); and
- the lowering of thresholds for resource recovery, waste processing (non-thermal treatment) and waste storage activities that require an environment protection licence.
Proximity principle: Offence for transport of waste
The proximity principle aims to address the environmental and human health impacts in NSW associated with the unnecessary transportation of waste over long distances and ensure local communities play an active role in waste management by taking greater responsibility for the waste they generate.
It is now an offence for any person, in the course of business, to transport by motor vehicle any waste (other than restricted solid waste) generated in NSW to any place, in or outside of NSW, unless the place is a lawful waste disposal facility and either:
- the place is within 150km (measured in a straight line) of the premises where the waste has been generated (Premise of Origin); or
- if there is no such facility within 150km, the place is one of the two nearest facilities from the Premises of Origin.
However, a person is permitted to transport such waste beyond 150km if the waste is being disposed of in another State or Territory provided that the border crossing (i.e. a road) is either:
- within 150km of the Premises of Origin; or
- closer than the two nearest facilities in NSW, even if the crossing is more than 150km from the Premises of Origin.
It is also now an offence for restricted solid waste generated in NSW, in the course of business, to be transported by motor vehicle to any place unless the place is a lawful waste disposal facility and is the closest facility, in or outside NSW, to the Premises of Origin. However, restricted solid waste may be transported to another State or Territory provided that the border crossing is closer to the Premises of Origin than the nearest lawful waste disposal facility in NSW.
The maximum penalty for an offence is $44,000 for corporations and $22,000 for individuals. Alternatively, the EPA may issue a penalty notice in the amount of $15,000 for corporations and $7,500 for individuals for this offence.
It is a defence to this offence if the alleged offender can establish that the waste was not transported to the place or that the waste was transported to the place:
- for lawful recycling, resource recovery, energy recovery, energy recovery, processing or re-use;
- in an emergency to protect human health, the environment or property; or
- in accordance with an approved product recall.
Monitoring asbestos waste
From 1 July 2015, transporters of 100kg or more of asbestos waste or 10m² or more of asbestos sheeting, in any single load, will need to provide information to the EPA regarding the load and its movement from the Premises of Origin to disposal. In addition, occupiers of lawful waste disposal facilities must provide information to the EPA regarding the time and date of delivery and weight of the load within 3 days.
These changes will allow the EPA to monitor the movement of the asbestos waste or sheeting through the assignment of a unique consignment code issued by the EPA in relation to the particular load.
The maximum penalty for an offence is $22,000 for corporations and $11,000 for individuals.
Prescribed wastes for land pollution offence
The Protection of the Environment Operations (General) Regulation 2009 (NSW) now contains a list of wastes that are prescribed for the purposes of the definition of the terms “land pollution” and “pollution of land” in the POEO Act:
- hazardous waste;
- restricted solid waste;
- more than 10t of asbestos waste; and
- more than 5t of waste tyres or more than 500 waste tyres.
As a consequence, the placing of any of the above prescribed types of waste in or on land is automatically “land pollution” and an offence carrying a maximum penalty of $1 million for corporations and $250,000 for individuals (POEO Act, s 142A).
Reduced licensing thresholds for waste activities
The New Waste Regulation has lowered the thresholds for resource recovery, waste processing (non-thermal treatment) and waste storage activities that are required to hold an environment protection licence. For instance, the new thresholds for waste storage are as follows:
- storing more than 1,000t or 1,000m³ at any time on premises in a regulated area (being numerous local government areas);
- storing more than 2,500t or 2,500m³ at any time on premises outside a regulated area;
- receiving more than 6,000t per year from off site in a regulated area; or
- receiving more than 12,000t per year from off site outside a regulated area.
The old thresholds for waste storage were the lesser of 2,500t or 2,500m³ stored on the premises or receiving 30,000t per year.
Although these new thresholds have taken effect, there is a nine month transition period for facilities meeting the new thresholds to obtain a licence.
Interstate waste tracking
From 1 March 2015, waste consigners and transporters will be required to track waste that is transported from a metropolitan levy area (being specified Sydney metropolitan local government areas) to a waste facility in another State or Territory if the waste has been generated in NSW and weighs 10t or more.
Unlicensed landfill sites
Under the New Waste Regulation, all newly established landfill sites that are not required to hold an environment protection licence (i.e. not a scheduled activity) must notify the EPA of certain matters before the operation commences. The maximum penalty for an offence is $22,000 for corporations and $11,000 for individuals.
A new defence has also been created for occupiers of unlicensed landfill sites in circumstances where the site has maintained minimum operational standards.
Operational purpose deductions
Occupiers of licensed landfill sites are now able to claim an operational purpose deduction for quarried materials onsite or recycled materials that meet the specifications in the Waste Levy Guidelines when used at the facility for the construction of roads or construction works (e.g. hardstands, foundations or infrastructure) onsite.
Immobilisation of high risk comtaminants
As part of the New Waste Regulation, generators and processes of waste that is subject to an immobilised contaminants approval (ordinarily hazardous waste) will be required to issue a designated waste certificate confirming the waste has been treated in accordance with the approval. The purpose of this certificate is to provide confidence to the receiving facility that that the waste has been treated in accordance with the EPA’s immobilisation requirements. Failure to provide a certificate may result in a maximum penalty of $22,000 for corporations and $11,000 for individuals.
Waste Resource Recovery Exemptions
The EPA may now issue a Resource Recovery Order and a Resource Recovery Exemption in relation waste intended to be beneficially applied to land, reused as fuel or reused in connection with a process of thermal treatment. These two documents will replace the general and specific resource recovery exemptions that were issued under the previous Protection of the Environment Operations (Waste) Regulation 2005 (NSW).
Waste levy framework
From 1 August 2015, the levy exemption that applied to storage, treatment and transfer stations will no longer apply and, as a result, all scheduled waste facilities in the regulated area will be liable to pay the levy. The Protection of the Environment Operations (Waste) Amendment (Contributions) Regulation 2014(NSW) sets out the details regarding the amount and timing of payments, as well as the reporting and record keeping requirements. However, some facilities will be exempted from the levy liability such as facilities licensed for metallurgical activities, clinical and related waste, liquid waste, hazardous waste, restricted solid waste, contaminated soil treatment and paper or pulp production facilities.
Reporting requirements for waste facilities
From 1 August 2015, all scheduled activities which are not required to pay the waste levy will be required to provide an annual report to the EPA outlining the amount and type of waste that has been processed, stored, recycled and disposed of for that year.
Waste tyre monitoring and licensing
From 1 July 2015, consignors and transporters of waste tyres will be required to monitor the movement of waste tyres in NSW where a load is greater than 200kg or more than 20 waste tyres, whichever weighs less. In addition, occupiers of waste disposal facilities must provide information to the EPA regarding the time and date of delivery and weight of the load within 3 days.
Consignors and transporters of tyre waste also need to be aware that the thresholds for waste storage, waste processing and resource recovery for waste tyres have been significantly reduced and may now require a licence. Although these new thresholds have taken effect, there is a nine month transition period for facilities meeting the new thresholds to obtain a licence.