You will recall that in Part 1 of our four-part series on the waste reform measures we looked at what is NOT a waste. Another significant component of the waste reform package relates to stockpiling. We take a look at what the changes mean for you and how they could impact your operations.
Stockpiling – what are the limitations:
The Waste Reform Bill seeks to amend the objects of the Environment Protection Act 1993 (EP Act) to expressly provide for the management of static and growing stockpiles. The amendments to the objects of the EP Act mean that the EPA, as the authority responsible for administering the EP Act, has the power to impose controls on stockpiling through various regulatory measures.
The Waste Reform Bill provides that unauthorised stockpiling is deemed to have occurred if a maximum allowable stockpile limit imposed by or under the EP Act has been exceeded. The Bill does not, however, set a stockpile limit. The determination of the appropriate limit(s) will be the subject of separate industry consultation.
The EPA has acknowledged that there is not a one-size-fits-all approach to managing stockpiles. Accordingly, it is possible that any resulting regulations could prescribe different limits depending on the nature of the material stockpiled, particular market requirements, or other relevant factors.
Significantly, the Waste Reform Bill also proposes changes to the EP Act to allow the EPA to impose or vary an EPA licence condition at any time to provide for a site specific stockpile limit. Similarly, if enacted, the amendments will mean that the EPA also has the ability to impose licence conditions requiring the provision of financial assurance at any time. The EPA could apply these powers in the context of stockpiling to protect against a risk of abandonment and environmental harm.
While the EPA will still be required to comply with the procedures in the EP Act which require it to notify licensees of proposed changes to licence conditions and give licensees the ability to make submissions in relation to those proposed conditions, the limitations in the EP Act as to when changes to licence conditions can be made by the EPA (e.g. at the time of renewal) will not apply to these types of conditions. This creates potential operational uncertainty for licence holders.
Importantly, under the Bill, exceedances of stockpile limits will amount to “unlawful disposal of waste” under the EP Act. Given project limitations in respect of site space, project deadlines and the costs associated with disposing of fill to landfill, you will need to ensure that you give consideration to what your reasonable stockpiling requirements are at the start of your project.
The changes to stockpiling are intended to operate in conjunction with other reform measures, including the following:
- Waste levy changes: The EPA is continuing to explore the introduction of an upfront levy where stockpiles exceed authorised limits or become static. Waste levy changes will be discussed in further detail in Part 3 of this series.
- Mass balance reporting: The EPA’s proposal to introduce mass balance reporting regulations will provide it with data in relation to movement, storage and fate of waste.
Cowell Clarke has significant experience in the waste field and is currently involved in making submissions in relation to the Waste Reform Bill. If you would like assistance with preparing a submission or would like one of our team to conduct an information session on the proposed changes please contact us.