25 Nov 2021

Victoria's Environment Protection regime: industrial waste

By Sallyanne Everett, Julia Gillies

If you generate, transport or receive waste, ensure you understand your duties under the new regime and, in particular, how to classify and categorise waste.

On 1 July 2021, the Environment Protection Act 1970 (Vic) (1970 Act) was repealed and replaced by the reforms introduced by the Environment Protection Act 2017 (Vic) (2017 Act) as amended by the Environment Protection Amendment Act 2018 (Vic). The 2017 Act is now the central environment protection legislation in Victoria. Among other changes, the 2017 Act replaced the previous framework of "prescribed industrial waste" and introduced a number of duties relating to industrial waste.

How is industrial waste managed under the new regime?

The previous framework of "prescribed industrial waste" has been replaced with three tiers of industrial waste:

  • Industrial Waste - a broad category that covers all waste arising from commercial, industrial or trade activities or from laboratories, and any waste prescribed to be industrial waste.
  • Priority Waste - a subset of industrial waste prescribed in the Environment Protection Regulations 2021 which requires additional controls
  • Reportable Priority Waste - a subset of priority waste, this subset deals with wastes that carry the highest levels of risks. Also prescribed in the Regulations.

These categories are cumulative: waste may just be "industrial waste", or it could be industrial waste and priority waste and reportable priority waste.

The 2017 Act and the Regulations set out a number of duties that apply to those involved in the management of industrial waste.

Industrial waste

Waste depositor: Must not deposit industrial waste at a premises unless that premises is "authorised to receive industrial waste" (often referred to as a lawful place), and must have the consent of the permission holder / occupier to deposit the waste.

Waste receiver: Must not receive industrial waste at a premises unless that premises is a lawful place

A person about to relinquish control of industrial waste for transport: Must take all reasonable steps to ensure the waste will be transported to, and received at, a lawful place. This includes identifying and classifying the industrial waste, and providing information about the waste to the transporter.

Priority waste

A person in management or control of priority waste: Must take all reasonable steps to:

  • ensure that the priority waste is contained in a way that prevents its escape
  • ensure that the priority waste is isolated in a way that ensure resource recovery remains practicable
  • ensure that a person transporting the waste is given information about the priority waste
  • identify and assess alternatives to disposal of the priority waste.

A person in management or control of priority waste: Must not mix, blend or dilute the priority waste with other wastes so as to change the classification of the waste, other than in accordance with a designation issued by EPA.

Reportable priority waste

Person undertaking a "prescribed transaction" in reportable priority waste: Must record the transaction details and provide them to the "prescribed person" in the "prescribed manner and form"

The prescribed transactions include the consignment of reportable priority waste for transport to another place or premises. EPA has approved a system which provides the "prescribed manner and form" for recording transactions. 

A person transporting reportable priority waste, or causing another person to transport reportable priority waste: Must not transport reportable priority waste except in accordance with a permission.

There are also new offences in relation to littering and waste contained in Part 6.3 of the 2017 Act.

How do you classify waste?

Part 4.2 of the Regulations sets out the process for classifying waste. In short, this requires:

What is a lawful place for the receipt of industrial waste?

Lawful places are created by a number of different means:

  • holding a relevant permission (e.g. operating licence, permit)
  • holding a relevant permission exemption (e.g. a licence exemption or a section 48 determination)
  • being authorised under an emergency authorisation issued under section 157 of the 2017 Act
  • being authorised by a process in the Regulations.

The processes set out in the Regulations are found in regulation 63 and include:

  • where a "declaration of use" is in effect (a self-assessed declaration that can be used for low risk waste, see EPA's webpage on declarations of use at https://www.epa.vic.gov.au/for-business/waste/declaration-of-use)
  • where the waste is received in accordance with specifications in a determination made by the EPA under the Regulations (these determinations can be found on EPA's webpage, under "Waste determinations", see https://www.epa.vic.gov.au/determinations)
  • the premises is receiving not more than 5m3 of industrial waste that is not priority waste, where receiving that waste does not require a permission and the waste will not be applied to land; or
  • where the waste meets one of the other specific requirements in regulation 63.

What does this change mean for waste generators or waste receivers with existing permissions, or who rely on classifications issued under the 1970 Act?

As set out in our previous article on transitional issues under the new regime, existing licences granted under the 1970 Act have been transitioned to "operating licences" under the 2017 Act. EPA has the ability to amend these transitioned permissions for the purpose of ensuring consistency with the kinds of conditions that can be imposed under the 2017 Act.

Classifications of specific application have been saved by regulation 8 of the Environment Protection Transitional Regulations 2021 (Vic). These classifications:

  • are deemed to be designations made under the 2021 Regulations, and continue to be subject to any conditions that they were subject to under the old regime;
  • will expire on 30 June 2023, or earlier if revoked by the EPA or where an earlier expiry date is specified in the classification.

Classifications of general application have not been saved, but the EPA has issued some general designations.

What should you be doing?

If you generate, transport or receive waste, ensure you understand your duties under the new regime and, in particular, how to classify and categorise waste.

We have compiled a list of the key provisions of the 2017 Act, EPA publications and webpages relevant to industrial to provide a useful reference point for you.

Classifying waste

Environment Projection Act 2017

  • 6 Definition of industrial waste
  • 135 Duty of persons involved in transporting industrial waste
  • 138 What is priority waste
  • 139 Duties of persons managing priority waste

Environment Protection Regulations 2021

  • 60 What is industrial waste?
  • 61 Classifying industrial waste
  • 62 Classifying soil sourced on-site from contaminated land
  • 65 What is priority waste?
  • 66 Classification of priority waste as reportable priority waste in accordance with the Waste Classification Assessment Protocol
  • 67 Classification of priority waste consigned for disposal
  • 68 Classification of priority waste that is soil
  • 69 Priority waste classification - information
  • 71 What is reportable priority waste (transactions)?
  • 72 What is reportable priority waste (transport)?
  • 86 Authority may issue designation
  • 87 Applications for designations
  • Schedule 5 Waste classification
  • Schedule 6 Categories of priority waste

Environment Protection Transitional Regulations 2021

  • 8 Saving of waste classifications of specific application

Publications

Managing waste

Environment Protection Act 2017

  • 133 Duties of persons depositing industrial waste
  • 134 Duties of persons receiving industrial waste
  • 135 Duty of persons involved in transporting industrial waste
  • 136 Repeat industrial waste offenders
  • 137 Offence to supply false or misleading information or conceal information in connection with industrial waste
  • 139 Duties of persons managing priority waste
  • 140 Duty to investigate alternatives to waste disposal
  • 141 Guidelines for alternatives to waste disposal
  • 142 Duty to notify of transaction in reportable priority waste
  • 143 Duty of persons transporting reportable priority waste
  • 157 Authority may authorise emergency storage, use etc. of waste
  • 158 Complying with authorisation

Environment Protection Regulations 2021

  • 5 Determinations of the Authority
  • 63 Authorised to receive industrial waste
  • 64 Declaration of use
  • 70 Mixing, blending or diluting priority waste
  • 71 - 85 - Reportable priority waste
  • 88 - 92 - Accredited consigners

Determinations made under regulation 5

Publications

Permissions and permission exemptions

Environment Protection Act 2017

  • 44 Development licences required for development activities
  • 45 Operating licences required for operating activities
  • 46 Permits required for permit activities
  • 47 Registration required for registration activities
  • 48 Determination that person does not require permission
  • 67 Priority waste and landfill facilities
  • 68 Exemptions for transporting reportable priority waste
  • 80 Application for licence exemption
  • 82 Permit exemptions granted by the Authority

Environment Protection Regulations 2021

  • 186-192 - Fees for reportable priority waste transport permits
  • 193 Prescribed application fee for permit to transport controlled waste into Victoria
  • 219 Prescribed equivalent permissions
  • 220 Pending applications
  • 221 Prescribed provisions
  • 222 Temporary prescribed exemptions - operating activities
  • 223 Temporary prescribed exemptions - permit activities
  • 224 Temporary prescribed exemptions - registration activities
  • Schedule 1 Prescribed permission activities and fees

Publications

Waste levy

Environment Protection Act 2017

  • 144 Definitions
  • 145 Requirement to pay waste levy
  • 146 Minister may waive the requirement to pay waste levy
  • 147 Payment of waste levy to the Authority
  • 148 Calculation of levy that results in a negative amount
  • 149 Agreement to offset amount owing
  • 150 Requirement to provide prescribed information regarding calculations of waste levy and allowable rebates to Authority
  • 151 Assessment by the Authority of waste levy liability
  • 152 Rights and powers of the Authority if waste levy is not paid
  • Schedule 2 Amount payable as waste levy

Environment Protection Regulations 2021

  • 44 Waste levy activity
  • 45 Waste levy payable for soil containing asbestos only
  • 46 What is an allowable rebate?
  • 47 When must the waste levy be paid?
  • 48 Information for calculating waste levy
  • 49 Information for calculating allowable rebate
  • 50 Information to be provided to the Authority
  • 51 When must information be provided to the Authority?
  • 52 Municipal districts subject to higher waste levy for municipal and industrial waste

Publications

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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.