Reforming waste management
Environment Protection Act 1993 Schedule 1
Administrative changes to prescribed activities of environmental significance were made by the Governor on 17 January 2019 and will come into effect on 1 June 2019.
South Australia has introduced many waste management reforms over the past decade that have successfully promoted resource recovery in our state and established our reputation as a leader in this field.
The waste and resource recovery sector has grown into an economically significant part of our economy. Further growth, including significant job creation, has been identified as possible with the next series of modernised regulatory and policy settings.
The South Australian Government is seeking to help realise the economic potential from innovation in waste and resource recovery technologies while at the same time protecting our environment. It is committed to providing the right settings to attract investment, drive innovation and create jobs.
Through its compliance efforts and reform processes, the EPA is committed to establishing a robust regulatory environment to support the sustainable operation of the waste and resource recovery industry by seeking to:
- minimise the risk of environmental harm occurring
- support the highest and best, safe available use of secondary materials in accordance with the waste management hierarchy
- provide more certainty and fairness for lawful operators, promoting investment, innovation and growth of the sector
- stamp out illegal operators
- obtain levy revenue due to the South Australian Government.
To achieve these outcomes, the EPA is pursuing an extensive waste reform program to achieve sound regulation that supports fair and equitable competition, stability, growth and innovation in the sector.
Throughout the reform process, the EPA has been working closely with key stakeholders, including:
- In March 2015, a Waste Summit was convened by the Minister for Sustainability, Environment and Conservation to provide an update on the state of the waste and resource recovery industry and allow discussion on key issues.
- In August–October 2015, a Discussion Paper, Reforming waste management – creating certainty for an industry to grow, was released for consultation, recognising the key drivers influencing waste management and seeking views on a broad mix of potential reform mechanisms.
- between April–November 2016, presentations on Waste Reform priorities
- In September 2016, a Stakeholder Workshop was conducted regarding a range of reforms at the Waste SA Conference.
Beyond these broad activities:
- direct engagement has been occurring and continues via regular meetings of the EPA Chief Executive’s Waste Reform High-Level Advisory Group and the complementary WMAA Industry Reference Group
- consultation processes are being pursued for specific projects as outlined for each project below.
Changes to the waste levy to promote further resource recovery in our state have been pursued.
Feedback received on the Discussion paper and from the EPA’s industry stakeholder groups, along with EPA compliance experience, was used to help identify further initial priorities.
Proposed new or amended legislation
Environment Protection Act 1993 Schedule 1
Amendment of the Environment Protection Act 1993 – the Waste Reform Act
The Environment Protection (Waste Reform) Amendment Act 2017 (Waste Reform Act) commenced operations on 28 November 2017.
The amendments arising will result in modernised and strengthened powers under the Environment Protection Act 1993 (EP Act) to better support a strong, legitimate resource recovery sector as well as improving the EPA’s ability to prosecute illegal dumping cases.
The amendments through the Waste Reform Act are considered the necessary first legislative step to empower the EPA to address the most pressing issues. They are to be followed by further waste reform priorities, including staged amendments to the Environment Protection Regulations.
Key amendments through this Act to support a strong, legitimate resource recovery sector include:
- explicit powers to enable regulation of material flow and stockpiling through amendments to the Objects of the EP Act and new powers regarding stockpiling conditions, including an ability to amend stockpiling conditions at any time;
- expansion of the circumstances when financial assurances can be used (including insurance) to protect against environmental, abandonment and distortion risks whilst also supporting innovation;
- process and evidentiary requirements to assess materials as approved recovered resources to better support innovative and safe resource recovery; and
- improved and proportionate powers for tackling breaches of licence conditions, including an expiation of $1,000 for a breach of licence condition and default penalties for breach of reporting deadline licence conditions.
The amendments through this Act also strengthen the EPA’s ability to prosecute illegal dumping cases for the benefit of our community and the legitimate waste and resource recovery industry by:
- addressing car owners’ responsibility for illegal dumping
- enabling tracking device use
- expanding authorised officer powers to enter certain premises and mark materials that are likely to be illegally dumped
- allowing for improved monitoring of material that will assist with tracking waste sources and destinations.
Development process including consultation
Potential changes to the EP Act were introduced in section 6 of the initial Discussion paper. Feedback received on the Discussion Paper helped inform preparation of draft legislation.
An Explanatory Paper and draft Bill to amend the EP Act were formally released from 22 September–18 November 2016.
Across this time, the EPA conducted a workshop at the Waste SA Conference and held consultation forums on the draft Bill in metropolitan Adelaide and six regional areas: Port Augusta, Clare, Mount Gambier, Karoonda, Wudinna and Mannum. Staff were also available at several key conferences and forums held during the consultation period and met directly with several interested groups.
The EPA received 18 written submissions through the draft Bill consultation process from the following sectors:
- Local government
- Adelaide Hills Regional Waste Management Authority
- Fleurieu Regional Waste Authority
- Local Government Association
- Waste and resource recovery industry
- Australian Landfill Owners Association (ALOA)
- Jeffries Group
- Local Liquid Waste Removal
- Mike Haywood – Sustainable Resource Solutions
- South Australian Waste Industry Network (SAWIN)
- SUEZ Recycling and Recovery Australia
- Waste Management Association of Australia (South Australian Branch)
- Waste & Recycling Association of South Australia Inc
- General business
- Business SA
- Housing Industry Association
- Small Business Commissioner
- South Australian Wine Industry Association Inc
- Non-government organisations
- Keep South Australia Beautiful (KESAB)
Views expressed on the draft Bill were used to assist in development of the final Bill.
Changes made following consultation on the draft Bill were:
Area of amendment
Amendment to Bill
Financial Assurances refinement (section 51)
Proposed new section 51 – conditions requiring financial assurance was amended to remove the reference to claims for compensation to a person who has suffered loss or damage to property and to ensure that the provision would suitably enable the EPA to address risks of abandonment of unauthorised stockpiling and decommissioning of abandoned plant or equipment.
Stockpiling controls – strengthening of provisions (sections 10, 52A, 93A and 3)
The proposed amendment of section 10 – Objects of Act was amended to strengthen the object to promote the circulation of materials through the waste management process and to support a strong market for recovered resources by adding a new subsection 10(1)(b)(iaa)(d) by preventing the unauthorised stockpiling of waste or other matter.
Additional amendments were also made section 52A of the Act – conditions requiring closure and post-closure plans, and section 93A of the Act – Environment protection orders relating to ceasing of activity while a new subsection 3(4)(a) will provide that a reference to disposal of waste or other matter includes a reference to stockpiling.
Definition of pollutant, waste and environmental harm
Clarification (sections 3 and 4)
Amendments to the definition of pollutant, waste and environmental harm were made to clarify that anything declared by an environment protection policy or a regulation to be a pollutant, waste or environmental harm are definitions made for the purposes of the Environment Protection Act 1993.
There is now a proposed new standalone definition of waste in a new section 4.
Tracking of waste - Refinement of powers Supreme Court now relevant jurisdiction
The Bill was amended in line with the Surveillance Devices Act 1972 to require a special powers warrant to be obtained from the Supreme Court to enter and mark or track waste (vs a justice). A new section 88A was inserted into the Bill whereby an EPA senior authorised officer may obtain a special powers warrant in order to exercise certain new powers to investigate illegal dumping and other waste-related contraventions together with removal the previously proposed new standalone section 4E Use of Surveillance devices. Related amendments have been made to proposed section 140 regulation making powers. Amendments have been prepared to focus proposed new powers on the use of cameras or GPS devices rather than 'surveillance devices'.
Minor drafting improvements (various)
Minor drafting improvements have been made to the Bill including an amendment to substitute a reference to Divisional Penalties with the monetary value of the penalties and years of imprisonment that now appear in a new schedule.
Broader comments on the waste reform program received from the Bill consultation process are helping inform other priority reforms.
Many submissions sought to be included in the future consultation on specific regulations and policies that will support the changes to the EP Act. The EPA is committed to undertaking consultation on key regulations and policies to help support optimum outcomes.
What are the key issues that the Act seeks to address?
The Waste Reform Act has amended the EP Act to support the South Australian Government in continuing to lead the way in waste management and resource recovery.
The Waste Reform Act provides the necessary underpinning to enable the Environment Protection Authority to implement important waste reforms and provide improved tools for dealing with 5 key issues:
1 Excessive stockpiling
A common aspect of waste management is the storage or stockpiling of waste for recycling or reuse. There are significant levels of waste stockpiling occurring in South Australia.
There is a need to balance the genuine need of many businesses and local governments to undertake some degree of stockpiling against excessive stockpiling that can create environmental, abandonment or unfair competition risks.
Indeed, stockpiling has been repeatedly raised by industry as a significant concern due to the potential for levy avoidance through the indefinite holding of material without either recovering and selling the materials or disposing of the material to landfill.
There are also a broad range of environmental, health and safety risks that can be associated with stockpiling of various wastes, including:
- Water pollution via leaching or runoff
- Fire, including through spontaneous combustion
- Dust emissions
- Odour emissions
- Biogas emissions
- Attraction of vermin
- Adverse visual amenity
- Safety risks due to instability of stockpiles.
The Waste Reform Act empowers the EPA to achieve balanced material flows, most particularly through proposed amendments to the objects of the EP Act to explicitly allow the EPA to promote material flow in the waste industry, revising the circumstances when financial assurances (including insurance) can be used and enhancing its ability to readily act on licence condition breaches.
The changes from the Waste Reform Act will support the development of strengthened administrative policies and licence conditions, and also enable further regulatory changes for the improved monitoring of material flows in the waste industry to influence the financial drivers applying to waste material flows.
2 Genuine, safe recovered resources as product
Through these reforms, the EPA seeks the use of only genuine recovered products, with materials that pose the risk of harm being safely disposed as waste.
Currently, waste industry participants can be tempted to class various wastes as ‘products’ to avoid disposal costs even though the materials might not be suitable for use by third parties. This issue is characterised by the significant processing of mixed waste with infrequent testing of ‘products’ made to determine consistency of character and contaminant levels together with low levels of residual waste to landfill. Often, such ‘products’ may be used by the producer themselves or a related entity.
Currently, operations may commence using such materials without any prior approval and then assert that the material was a ‘product’ subsequently. In other cases, the EPA is currently approached with ad hoc specific waste reuse proposals – often as fills, aggregates or within particular developments – which are considered in the absence of a statutory process.
Changes made by the Waste Reform Act support the EPA in ensuring that products are genuine and safe, with potentially harmful wastes being disposed to landfill, most particularly by amending the definition of ‘waste’ and explicitly providing for the establishment of an application and assessment process for the approval of material as a recovered resource (with the potential for cost recovery). It has also provided better powers for tackling breaches of licence conditions, and ensuring that if the EPA alleges that a material is a waste, the defendant is responsible for offering proof to the contrary. These changes are to be supported by new regulations setting clear assessment requirements and processes for proposed recovered resources.
3 Tackle the problem of potentially re-useable ‘fill materials’ from ending up at landfill
When land is being developed, uncertainty regarding testing and treatment, and time-cost pressures can lead to waste soils simply being removed from development sites, with disposals costs paid. From 2004−05 to 2012−13, research undertaken for Zero Waste SA found that around 82% of soil sent to landfill was of low risk and suitable for potential reuse. Through its reforms, the EPA seeks safe soil management and reuse through suitable facilities.
Greater clarity to better support the re-use of suitable ‘fill materials’ will be achieved through the Act supporting the EPA in ensuring that products are genuine and safe, with potentially harmful waste being disposed to landfill.
4 Provide better tools to deal with certain problematic wastes
Cost-effective recovery and disposal mechanisms do not exist for particular waste streams. It is recognised that the safest place for some hazardous wastes, for example, asbestos, is disposed in appropriate landfill. Other wastes that are currently problematic but potentially recoverable may benefit from new approaches. Through its reforms, the EPA seeks more equitable waste management options with resources safely recovered and potentially harmful waste disposed to landfill.
The Waste Reform Act offers additional opportunities to effectively manage problematic wastes, hazardous or recoverable, through supporting the EPA to be able to ensure that products are genuine and safe, with potentially harmful waste being disposed to landfill as discussed earlier. It also introduces a broader objective and power to clearly enable the EPA to promote effective material flows in the waste industry.
5 Respond to the problem of illegal dumping
Illegal dumping is the disposal of waste larger than litter on public or private land, including water, without approval from the EPA. Illegal dumping varies from small bags of rubbish in an urban environment to large scale dumping of materials in isolated areas, such as bushland and waterbodies. It can cause environmental harm by polluting land and waters and poses health and safety risks, especially when hazardous chemicals or asbestos are involved.
The EPA and local government respond to many illegal dumping incidents a year on both public and private land at significant cost to the South Australian community. Instances faced each year can range from small, opportunistic dumping to large illegal landfill operations. The EPA has a strong focus on commercial level or hazardous illegal dumping, with a dedicated investigations team.
In addition to a continuing strong enforcement focus by the EPA, more can still be done to prevent illegal dumping and support successful prosecutions for such dumping.
Measures in the Act include addressing vehicle owners’ responsibility for pollution, enabling GPS tracking of waste suspected of being dumped illegally and expanding authorised officer powers to enter and mark materials that may be dumped.
These changes will support a more level playing field and business investment in the waste and resource recovery sector with the true costs of waste disposal being appropriately borne by waste generators.
How will the Act support innovation and improved resource recovery as a circular economy is being promoted?
The reforms in the Waste Reform Act seek to help underpin enhanced waste and resource recovery sector stability, growth and innovation opportunities through supporting fair competition and a healthy environment.
The reforms include improved controls to achieve industry fairness, support for safe resource recovery innovations, and tools to better tackle illegal dumping.
The reforms support the work that Green Industries SA is undertaking to support a circular economy.
What are the impacts of the reforms on industry?
The Waste Reform Act contains improved illegal dumping controls for a more level playing field and business investment in the waste and resource recovery sector with the true costs of waste disposal being appropriately borne by waste generators.
Resource recovery businesses will benefit from increased certainty as to what is or is not a waste, including material classification as an approved recovered resource, and better addressing excessive stockpiling.
The Act seeks improved stockpiling controls to create a ‘level playing field’ by ensuring that only genuine stockpiling for resource recovery occurs. Where waste and resource recovery sector operators currently have large stockpiles then costs may be incurred while adopting improved management practices or if financial assurances are applied to cater for risks of abandonment beyond existing environmental risks. This is counterbalanced by the multiple benefits of fair competition and the safe recycling or disposal of waste or other matter. The EPA will also be ensuring that businesses have reasonable adjustment times by pursuing a consultative, staged management approach, including expanded guiding principles for stockpile controls and a financial assurances policy.
Local government operators will benefit from the improved ability of the EPA to tackle commercial level and hazardous illegal dumping and excessive stockpiling.
The reforms provide public value as they will provide environmental, economic and public health benefits from reduced illegal dumping and support the high significance that the South Australian community gives to improved waste management.
How does the Act address the issue of excessive stockpiles?
The reforms in the Waste Reform Act seek to limit excessive stockpiling that can create environmental, abandonment and unfair competition risks by:
- Improving the ability of the EPA to regulate key aspects of the waste and resource recovery industry through changes to the objects of the EP Act to support the implementation of maximum stockpile limits and controls on material flows.
- Enabling the EPA to impose maximum stockpile limits as a licence condition on material stored at waste or recycling depots and implement controls on material flows in all circumstances, irrespective of material characteristics.
- Enabling the EPA to amend stockpiling conditions of licence at any time.
- Ensuring that financial assurances can be applied to address the risks associated with unauthorised stockpiling, or abandonment, of waste or other matter regardless of whether there is a risk of environmental harm.
- Allowing the EPA to issue an expiation for a breach of licence condition.
- Improving clarity and certainty regarding when a particular material constitutes a ‘product’ and ceases to be a waste.
- Placing the burden of proving a material is not a waste on an alleged offender.
The reforms further seek to manage the impact of abandonment risk by clarifying the EPA’s ability to require a licence holder to take out insurance to cover the costs of remedial actions resulting from pollution in connection with the licensed activity.
How does the Act address the issue of waste promoted as a ‘product’?
The reforms in the Waste Reform Act seek to promote the use of only genuine, safe, recovered products, with materials that pose a risk to the environment and human health being safely disposed as waste by:
- Improving clarity and certainty regarding when a particular material constitutes an ‘approved recovered resource’ and ceases to be a waste.
- Introducing cost recovery for EPA assessment work to determine if a material can safely be used as an ‘approved recovered resource’, particularly for more novel or unique ‘product’ development.
- Burden of proof being placed on those who assert that a material is not ‘waste’ rather than on the EPA to demonstrate that such material is waste.
How will an approved recovered resource application process be determined?
The Waste Reform Act introduces a new section 4A of the EP Act providing for the making of Regulations for declarations under this section.
Regulations under this section may provide for the manner and form of applications for declarations; application fees relating to declarations; and the criteria against which applications will be determined.
Additionally, the regulations will guide the provision of further information by applicants, the imposition of conditions of declarations; the term and renewal of declarations, the grounds for refusing applications; and the variation or revocation of declarations by further notice in the Gazette and the circumstances in which declarations may be varied or revoked.
Key stakeholders will be consulted about the intended application process through consultation on these draft regulations once developed.
How does the Act address the issue of illegal dumping?
The reforms in the Waste Reform Act build on existing EPA powers to provide improved illegal dumping controls. The economic, environmental and health costs of illegal dumping are to be reduced through four main reforms:
- Firstly the Act clarifies that the offence of illegal dumping includes disposal of waste.
- Secondly the reforms hold a registered owner of a vehicle responsible for illegal dumping from the vehicle in a similar way that speeding offences caught on camera hold the vehicle owner responsible unless the owner provides a statutory declaration to the contrary and nominating the person who is responsible. This also replicates the provisions of the Local Nuisance and Litter Control Act 2016.
- Thirdly, the Act increases the powers of authorised officers to enter premises to mark waste.
- Finally, the reforms empower the EPA use a tracking device to track waste if suspected illegal dumping of that waste may occur.
What additional powers are proposed to tackle illegal dumping?
For the successful investigation of illegal dumping, the EPA must be able to determine who illegally dumped the waste, which may require evidence about where the waste originated.
Authorised officers may already enter premises without a warrant where they reasonably suspect that a contravention of the EP Act has been, is being, or is about to be, committed in the premises, or the premises are business premises being used at the time in the course of business.
With the authority of a warrant, an authorised officer may already enter using reasonable force to break into or open any part of, or anything in or on any place or vehicle.
However, where a warrant was executed to enter premises, a copy of the warrant needed to be provided to the occupier at the time of execution of the warrant.
This requirement prevented covert investigations where there was a suspicion that waste was intended to be illegally disposed.
The EPA investigates illegal dumping of various types of waste, including asbestos. The EPA may receive reports regarding illegal dumping that has already occurred, or may receive ‘tip offs’ from concerned members of the public or from contractors who have been undercut by rogue operators about illegal dumping.
The new powers introduced by the Waste Reform Act allow a senior authorised officer to deal proactively with such tip-offs by enabling them to apply for a ‘special powers warrant’ from the Supreme Court to enter premises or a vehicle to mark waste, install a tracking device to track the waste and/or install cameras to monitor the site where waste may originate from or be disposed.
How can waste be marked?
The Waste Reform Act contains new powers to allow a senior authorised officer to apply for a ‘special powers warrant’ from the Supreme Court to enter premises or a vehicle to mark waste to monitor the movement of waste where it is anticipated it will be illegally dumped
The waste may be marked with paint, microdots or other identifying agents. For example, microdots may be sprayed onto waste such that it can be observed under lights or magnification to identify where it came from.
When is the state government or local government responsible for dealing with illegal dumping?
The EPA has a strong focus on the illegal dumping of commercial level or hazardous waste, with dedicated investigations staff. The EPA’s Investigations Unit targets illegal waste activities such as illegal landfilling, dumping of hazardous wastes, commercial quantities of demolition waste, liquid waste and industrial waste, and waste businesses and transporters operating without an EPA licence.
The EPA identifies, investigates and stops illegal waste activities using intelligence, covert surveillance and other investigative techniques to identify all parties that are involved in an illegal waste activity. Any party committing an offence along the waste chain, from producer, through transporter to the disposer, may be held accountable.
Deterrence is enhanced by a zero-tolerance approach to offenders, including the potential for cost recovery and confiscation of the profits of illegal activity, to remove the financial incentive associated with illegal waste activity.
Under the Local Nuisance and Litter Control Act 2016, councils have been provided with increased powers to deal with smaller-scale illegal roadside dumping in their areas. That Act provides councils with increased penalties and expiations to punish those who illegally dump as well as additional tools in identifying illegal dumpers. The first prosecution and conviction for illegal dumping under that Act was handed down on 8 August 2017 with a fine of $1,200 awarded for the dumping of two wheelie bins of green waste and general household waste onto a reserve.
The reforms in the Waste Reform Act provide additional means for the EPA to detect and respond to commercial level or hazardous illegal dumping. These proposed changes have been developed to complement the Local Nuisance and Litter Control Act 2016.
The reforms remove current obstacles the EPA face in prosecuting illegal dumping.
While there are significant penalties for those caught illegally dumping waste (for individuals, penalties can be as high as $500,000 or 4 years imprisonment, and for a corporate body the penalty can be as high as $2 million if the dumping causes serious environmental harm, plus potential clean-up costs and an additional penalty for illegally obtained economic benefit) there have been obstacles in the prosecution of offences.
This Act aims to reduce these obstacles by enabling the EPA and other relevant authorities to more readily identify who is responsible for the offence of illegal dumping and to collect informative evidence as to the offence.
Investigations into illegal dumping make up a significant proportion of all investigations undertaken by the EPA. Across 2017–18, 120 reports of illegal dumping were received by the EPA. These calls are received from both councils and the general public who want to report an illegal dumping incident or who have concerns about an EPA licensed facility. In addition to this, the EPA fielded around 1,000 general asbestos and incident-related phone calls from a variety of community and government stakeholders.
Where sufficient evidence has been available for action, the EPA has managed illegal dumping incidents using environment protection orders, clean-up orders, prosecution and expiations. Across 2017–18, the EPA issued orders re‑directing in excess of 10,000 tonnes of illegally deposited waste into the legitimate waste management industry. In addition 14 expiations were issued for illegal dumping. The EPA maintains a record of completed prosecutions and civil penalties.
Businesses that have been the subject of EPA investigation are involved in a range of industries including waste management involving both sold and liquid waste, food processing, building and demolition and also building maintenance.
The most serious penalty imposed for an illegal dumping matter has been a case of illegal dumping of waste on land without the owner's permission. In this case the defendant pleaded guilty and was sentenced to imprisonment for four months and two weeks. The sentence was suspended upon the defendant entering into a good behaviour bond for 2 years. Additionally, the defendant was ordered to pay landowners compensation for clean-up of land in the sum of $44,000 and victim of crime levy of $160.
The EPA provides ongoing support to councils through sharing expertise and providing training in areas such as modern tactical surveillance methods, and evidence collection for identifying and prosecuting offenders of illegal dumping.
How will the Act assist local government?
- address vehicle owners’ responsibility for dumping from their vehicle
- enable the use of tracking devices for classes of vehicle when prescribed (eg suspected of being involved in illegal dumping)
- expand EPA authorised officer powers to enter certain premises and mark materials that are likely to be illegally dumped
- allow for improved monitoring of waste and related material movements.
These reforms will be an advantage for our communities and the environment, helping to protect against harmful or unsightly unlawful waste disposal and reducing the significant costs borne by both State and local governments each year in cleaning up illegally dumped waste. The changes complement powers in the Local Nuisance and Litter Control Act 2016.
The Act also has new powers for the EPA to ensure the sustainable movement of materials at resource recovery facilities and upfront protection from key risks, including through:
- enabling regulation of material flow and to prevent excessive stockpiling within the waste and resource recovery industry through amendments to the Objects of the EP Act and new licence condition powers, strengthening the EPA’s ability to address all fire risks and avoid inappropriate delays in resource recovery
- expanding when financial assurances can be used (including insurance) to protect against environmental, abandonment and distortion risks while also supporting innovation
- providing improved and proportionate powers for tackling breaches of licence conditions, including an expiation of $1,000 for a breach of licence condition.
These changes will uphold the polluter pays principle, holding relevant operators responsible for costs arising from their operations rather than either having state or local governments or innocent land owners bear these, or, local communities suffer the health, amenity or environmental consequences of non-action.
Local governments may also appreciate that the Act promotes innovative, safe resource recovery in our communities by introducing a formal process to assess new proposals to use waste materials as approved recovered resources and changed evidentiary requirements around claims that disposed material is not ‘waste’.
Councils have previously expressed interest in being consulted about policy changes to be pursued subsequent to the Act, including mass balance reporting, when financial assurances will be used and the nature of likely stockpiling controls. Mass balanceu nderwent consultation in 2017 with a voluntary pilot project since established and the EPA is committed to consulting on the other matters (see next point below).
When will the government be releasing regulations envisaged by the Act?
The regulations will be developed in a staged, consultative manner with stakeholders.
This is an Act that supports the waste and resource recovery industry, as well as local government agencies involved in waste management, both protecting our environment and increasing fairness and certainty for industry. To ensure that reform objectives are most effectively met, the Government is committed to ensuring that the legislation is developed in a consultative manner on matters of key interest.
The EPA undertook consultation on a proposed mass balance reporting system in 2017 with a voluntary pilot project since established to help inform final regulations.
Simple consequential regulations and amendments to environment protection policies are being finalised for late 2018.
Other regulations being developed for the broader waste reform program will be consulted upon as developed.
Introduction of mass balance reporting
Mass balance reporting will require certain licensed waste facilities including transfer stations, resource recovery facilities and waste disposal depots, to report on the monthly tonnages of materials that a site receives, stockpiles, uses onsite or transfers from the site for sale or disposal.
The introduction of mass balance reporting regulations is supported by amendments made to the the Environment Protection Act 1993.
The potential for a mass balance reporting system was introduced in section 5.1 of the discussion paper. The EPA has used this feedback to propose how a detailed new reporting system could operate.
Feedback on previous views and the character of a proposed new reporting system and associated record-keeping, weighbridge, video monitoring and site survey requirements were presented in an explanatory paper released for consultation in September–October 2017.
Twelve submissions were received on the paper from industry, local government and an NGO.
Subsequently, a mass balance reporting voluntary pilot together with discussions with additional facilities is being undertaken to help finalise practical consideration. The submissions and the pilot will be used to help inform finalisation of the system for consideration by the state government and the subsequent presentation of regulations to amend the Environment Protection Regulations 2009 to Parliament.
Introduction of an amended manner of collection of levy at landfills
The current waste levy regulations do not explicitly envisage and cater for resource recovery processing and onsite use of such materials at landfill sites and how waste levy should be collected in such circumstances. The current lack of clarity provides opportunities for operators to avoid payment of the levy through various undesirable means to achieve an unfair competitive advantage.
The potential for amendment of the regulations to improve clarity and controls in this area was outlined in section 5.5 of the Discussion paper.
The EPA has been analysing potential changes and will consult upon any desired amendments to regulations relating to these matters.
Exploration of the introduction of an upfront levy liability
Upfront levy liability involves a proposal to make a wider range of facilities liable for the waste levy, including those that only store, recover, recycle or process waste. The concept and its potential role was discussed in section 5.2 of the discussion paper.
The EPA is not pursuing an upfront levy liability in the immediate future but its possible value will be monitored by the EPA as mass balance reporting and stockpiling controls are pursued.
Exploration of new legislative and policy measures that will keep South Australia as a resource recovery leader
South Australia has established itself as one of the world’s best recyclers with good policy and industry innovation. Changing product and packaging trends create new waste issues and the EPA is seeking to assess and monitor ideas to manage these issues more effectively.
Innovative change ideas were introduced in section 7 of the disscussion paper. Stakeholder feedback highlighted that further exploration of measures that will keep South Australia as a resource recovery leader should occur, including promoting food waste recycling and investigating a possible ban on polystyrene food packaging. These measures are to be explored, working with Green Industries SA.
Also, the Waste Reform Act introduced the ability to establish a formal process for the assessment of materials’ suitability to become ‘approved recovered resources’. Subsequent measures to further support this proposed process are being examined and will be consulted upon.
Exploration of expanded waste transporter licensing
Currently, not all operators transporting waste for fee or reward require a licence under the Act. Section 5.7 of the Discussion paper sets out the current licensing requirements and introduces the idea of also licensing additional commercial transporters of waste to cater for collection of domestic waste by private operators, and the transport of construction and demolition waste. Changes could potentially help promote safe dealings with problematic wastes and further developing safe resource recovery.
Waste and resource recovery industry stakeholders have indicated support for further exploration of this proposal. Once other priority legislative changes have been made, the EPA may proceed to examine the costs and benefits of this option.
Implementation of effective stockpiling controls
The effective control of excessive waste and recovered material stockpiles continues to be presented to the EPA as a matter of significant and ongoing concern within the waste and resource recovery industry. Section 5.3 of the discussion paper outlined the different risks and various options associated with stockpiling.
The Waste Reform Bill introduced amendments that empower the EPA to manage all risks effectively, whether environmental, abandonment and material flow risks. Actions currently underway by the EPA include a waste and resource recovery sector audit of existing stockpiles and the implementation of authorised stockpile limits as needed.
Financial assurance protocols to address environmental liabilities such as unauthorised stockpiling and abandonment risks in defined circumstances are being developed by the EPA in consultation with the waste and resource recovery sector and other government departments.
Effective recovery of illegally obtained economic benefits
In the waste and resource recovery sector, there is the potential that the economic benefits arising from a breach of the Act (for example, avoided lawful disposal costs) to significantly outweigh penalties available for a breach of the Act.
The EPA has the ability to ask the Environment Resources and Development Court to order a person who has contravened the Act to pay the EPA the amount of economic benefit acquired by the person as a result of the contravention in addition to the penalty applied.
The EPA has pursued administrative actions and training so that it can now seek to pursue use of a robust method to calculate and seek illegally obtained economic benefits in suitable circumstances.
Better management of waste soils and waste derived materials
Every year in South Australia, significant amounts of fill materials are move around as development activity generates either excess waste soil or the need for fill. The state government promotes the sustainable management of waste and recognises that particular waste streams may be suitable for beneficial reuse as fill. However, potentially significant risks to the environment and human health may arise from the use of inappropriate waste materials or the filling of land in inappropriate locations.
To support continuing better management of waste soils and waste derived materials, the EPA is developing a revised series of standards to simplify the terminology and structure of the current Standard for the production and use of Waste Derived Fill (WDF Standard).
Development of policy guidance for Energy from Waste facilities
The EPA has prepared a summary of submissions report that outlines the written submissions received during consultation of the discussion paper, Enhancing resource recovery and discussing the place of energy recovery.
The views submitted in response to the discussion paper are being used to assist in analysing the potential opportunities and challenges that may arise from growth in Energy from Waste (EfW) and inform the development of an EfW position statement. The position statement in turn will guide the development and regulation of EfW activities.
The discussion paper outlines the issues and drivers influencing the waste industry’s material resource recovery activities and the potential for growth in EfW. The discussion paper also asks a series of questions around current challenges and on growth opportunities in the waste and resource recovery industry. The discussion paper points to past successes in material resource recovery and that these should not be undermined by development not in keeping with the waste management hierarchy.
If you have any questions, please contact us on (08) 8204 2004 or 1800 623 445 (free call for non-metropolitan callers) or email.
Introduction of better options for managing particular problematic wastes
Section 5.5 of the Discussion paper introducing the idea of considering differential waste levies for problematic wastes.
Subsequently,the South Australian government introduced differential levies for the disposal of packaged asbestos waste and shredder floc from the recycling of metals from 2016-17 – see the Waste Levy for current rates.
The South Australian government is also further exploring opportunities to better deal with other problematic wastes, such as plastic microbeads and polystrene food packaging.
Seeking to influence government procurement processes
Building upon the introductory observations about Government procurement in waste soil management in section 5.4 of the discussion paper, stakeholders have highlighted that to support resource recovery sector growth and minimise waste, the use of recovered resources needs to be maximised and that State Government can have an important role in using recovered materials.
Green Industries SA has commenced a project working with the EPA, industry, local government and other agencies to research opportunities that may exist to practically encourage the further use of particular locally recovered materials by State Government in appropriate circumstances.