Waste reform

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
• Resourceco
• 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
• Origin
• 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 (sections 88A and 140)	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
• Litter
• 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?

Under the Waste Reform Act, local government will benefit from the EPA’s strengthened ability to successfully identify and prosecute widespread large-scale illegal dumping. The changes introduced:

• 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.