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06 Dec 2018

Queensland amends regulated waste classification and implements new waste-related ERA framework

By Kathryn Pacey, Gabrielle Minards

Waste facilities should review their current waste-related activities against the new regime to ensure compliance and determine any changes in regulation and costs.

The Environmental Protection Regulation 2008 was amended in 2018 to update the classification of regulated waste and revise the waste-related environmentally relevant activities (ERAs). The amendments rationalise regulation for low-risk activities, are designed to encourage innovative waste technologies and provide an incentive to treat waste. Not all of the amendments have yet commenced.

Background to regulating waste

The Queensland Government completed a review of the current system for regulating waste and released a Decision Regulatory Impact Statement in June 2018. The concept of regulated waste is a classification for waste that contains hazardous properties and presents a higher risk to the environment or human health. Currently a wide variety of wastes are considered regulated wastes, even though they may have varying levels of risk.

In addition, the current ERA framework includes 12 waste-related ERAs and the definitions often result in facilities that process low-risk or small amounts of waste paying similar licensing fees to those processing large amounts of waste.

The State undertook extensive consultation on the way waste is classified and managed, and submissions were overwhelmingly in support of adopting a new framework. In October and November 2018 two amending regulations were passed to implement the new system:

  • Environmental Protection (Regulated Waste) Amendment Regulation 2018; and
  • Environmental Protection (Waste ERA Framework) Amendment Regulation 2018.

Regulated waste classifications

The updated classification (commencing on 4 February 2019) will separate regulated waste into two categories and remove low-risk waste from the regulated waste classification. The updated framework includes the ability to test and re-classify low-risk waste as general rather than regulated waste. This will reduce regulation and costs around the management of low-risk waste and provide an incentive to treat waste to reduce the risk. Low-risk wastes will still be deemed to be general wastes and must be managed under the relevant requirements

All liquid waste will be categorised by default as regulated waste unless it is otherwise excluded by definition or sampling and testing has proven it is low-risk. The testing process for solid wastes will also be less onerous if the waste is not destined for landfill. Both generators and receivers of tested waste must keep records of each load of transported waste for at least five years.

Waste-related ERA framework

The overall number of waste-related ERAs under the framework will be reduced from 12 to 7. Updates to ERAs 53, 60 and 62 commenced on 23 November 2018. An environmental authority (EA) is no longer required for ERA 53 if organic material is generated and subsequently processed on a farm. ERA 53 now includes anaerobic digestion but an EA is not required if the anaerobic digestion is undertaken at a facility that holds an EA for ERA 63 (sewage treatment) or where meat processing is carried out.

Facilities that process only non-putrescible waste or inert waste streams will be subject to lower annual fees, with separate thresholds and categories within the ERAs. This recognises that these types of waste are low risk. Further, the annual fees for all ERA 60 (waste disposal) activities has been reduced.

ERA 62 (waste transfer station operation) now requires persons storing 4 tonnes or 500 equivalent passenger units of end-of-life tyres to obtain an EA and exempts persons from obtaining an EA if they operate a container refund point under the Waste Reduction and Recycling Act 2011.

Amendments to implement the rest of the framework will commence on 1 July 2019. This includes the amendment of six ERAs:

  • 33 (crushing, milling, grinding or screening);
  • 54 (mechanical waste reprocessing);
  • 55 (other waste reprocessing or treatment);
  • 57 (regulated waste transport);
  • 61 (thermal waste reprocessing or treatment); and
  • 62 (resource recovery and transfer facility operation.

The amendments also remove five ERAs which are now covered by the amended ERAs:

  • 20 (metal recovery);
  • 52 (battery recycling);
  • 56 (regulated waste storage);
  • 58 (regulated waste treatment); and
  • 59 (tyre recycling).

Notably, the waste transfer exemption has increased to 11,000t or 11,000m3 per annum for local government operated facilities. Further, a waste transport EA will be required when transporting friable asbestos or more than 175kg of non-friable asbestos.

The framework is expected to result in more appropriate fees for low-risk or low volumes of waste, through a more comprehensive risk-assessment process. The framework will also support new and emerging waste-related technologies.

A new trackable waste code has been added for per- and poly- fluoroalkyl substances, commencing 5 February 2019.

Transitional provisions

Where a person holds an EA for a former ERA, the conditions will transfer to and continue to apply to a replacement EA. The EA conditions cannot be amended during this process and the anniversary day will remain the same. The new annual fee will not be payable until the first anniversary day after 15 November 2019. Where a properly made EA application was already in place but not yet assessed, this will be taken to be an application for the new prescribed ERA.

Impact on Local Governments

Small-scale local government facilities will no longer require an EA. There will be a reduction in administration costs as ERA 20 (metal recovery) and ERA 61 (waste incineration and thermal treatment) will no longer be devolved to local governments from 1 July 2019. However under the transitional provisions a local government exercising a power or performing a function in relation to those ERAs before 1 July 2019 may continue to do so.

Impact on State Government

By further categorising waste as low, moderate and high risk, the State will be able to target compliance measures at high risk waste facilities. The streamlined framework should result in improved overall compliance and will be flexible enough to cover new and emerging waste technologies.

Impact on waste generators and treatment facilities

As of June 2018 there were 1868 active waste-related ERA approvals. Waste facilities that are low-risk or operate on a small to medium scale will save on costs. The ability to test and reclassify waste will further reduce costs. The new regime provides flexibility to accommodate new waste technologies.

Waste facilities should review their current waste-related activities against the new regime to ensure compliance and determine any changes in regulation and costs.

If you would like assistance in understanding how the new ERAs may apply to your business, please contact us.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.