By virtue of the Environmental Protection (Regulated Waste) Amendment Regulation 2018 (Amending Regulation), Queensland will have a new regulated waste classification framework from 4 February 2019.
The Amending Regulation implements the preferred options (as amended) identified in the Department of Environment and Science’s review of Queensland’s waste management framework in 2017. The Amending Regulation amends the current regulated waste regime under the Environmental Protection Act 1994 (EP Act) and the Environmental Protection Regulation 2008 (EP Regulation) to include a new risk-based classification framework. The further classification of regulated waste is based on an assessment of a waste’s hazardous properties and the risk it poses to the environment and human health. This sub-classification will allow more appropriate regulatory controls to be applied to the management of regulated waste to ensure an appropriate level of hazard protection is applied. In doing so, waste generators will be incentivised to treat waste so that it falls within a lower risk waste category that attracts less onerous (and less costly) regulatory controls.
Under the current regime, waste will generally fall into one of two categories; general waste or regulated waste. Waste will be regulated waste if it is commercial or industrial waste that that has not been determined to not be ‘waste that is not regulated waste’ and is or contains a constituent that is listed under Schedule 7, Part 1 of the EP Regulation. The EP Regulation lists 71 waste items as regulated waste, including items such as asbestos, tannery waste, waste from surface treatment of metals or plastics, polychlorinated biphenyls and fly ash. Regulated waste also includes ‘clinical waste’ such as discarded sharps and human tissue waste, as well as ‘related waste’ such as waste that constitutes or is contaminated with chemicals, pharmaceutical products or radioactive substances.
This classification of waste as regulated waste does not take into account the risk associated with the specific type of waste or the concentration of contaminants present in the waste. If an element of waste is an item of regulated waste (ie. contains residue of regulated waste) it will be regulated as such irrespective of the level of risk posed.
How is regulated waste currently regulated?
Certain regulated waste activities are Environmentally Relevant Activities (ERAs) under the EP Act. ERAs are more highly regulated due to the greater potential to cause environmental harm. In many instances, regulated waste ERAs will be the operation of a facility for receiving and storing, or disposing of, certain types of regulated waste. The regulation of ERAs under the EP Act includes the requirement for operators to hold an environmental authority for the activity.
The storing, treating, reprocessing or disposing of regulated waste, other than at the place it is generated, is also a notifiable activity under the EP Act. Where such a notifiable activity has been or is being carried out on land, and is causing or is reasonably likely to cause environmental harm, there are associated duties to notify the regulator. Such an activity is also a basis for the regulator to include the land on the environmental management register.
Regulated waste may also be trackable waste under the EP Regulation. Generators, transporters and receivers of trackable waste are required to keep records and give information about the trackable waste, including providing information about the waste and its transportation to the regulator.
What is the new regime?
The new regulated waste regime implements a framework for determining if a commercial or industrial waste is classified as:
This sub-classification of regulated waste will allow more risk-appropriate regulatory controls to be applied to the category of regulated waste or no regulation where regulated waste is or becomes ‘not regulated waste’. There are two methods for categorising waste as category 1 or category 2 regulated waste.
The first method is the default categorisation method by which a waste generator applies the table in schedule 7, part 1 of the EP Regulation to determine the type of regulated waste they are generating and the corresponding risk category. The table applies to both liquid and untested solid waste. If more than one of the listed waste types apply, the waste type that has the highest waste category will apply.
The second categorisation method allows a waste generator to test the waste for relevant attributes or substances that are likely to be present in the waste and comparing the results against the categorisation thresholds listed in the table in schedule 7, part 2 of the EP Regulation. These thresholds only apply to the testing of solid waste.
Under the new section 64A of the EP Regulation, if the waste substance exceeds the threshold stated in column 2 of the schedule 7, part 2 table, or if the waste has a pH less than 2 or greater than 12.5, the waste will be category 1 regulated waste. Conversely, where testing shows the solid waste substance to be below the threshold stated in column 2 of the schedule 7, part 2 table, the waste will be category 2 regulated waste.
Liquid waste, that is not categorised as ‘not regulated’ under section 64, can only be categorised via the default categorisation method, namely the application of the table in schedule 7, part 1 of the EP Regulation to determine the category of regulated waste.
Waste categorised as ‘not regulated’
Under the revised definition of regulated waste in section 64 of the EP Regulation, waste also has the potential to be categorised as ‘not regulated’. Tested solid and liquid waste will be ‘not regulated’ under section 64 if testing shows the attribute or substance in the waste, listed in the tables in schedule 7, part 3, division 2, is within the corresponding parameters.
Under the new regulated waste regime, the listed items of waste that were previously excluded from the definition of regulated waste (such as electronic equipment) have been retained and expanded to include tallow, treated clinical waste and related waste that has been treated to render it non-infectious.
The new regulated waste regime includes new provisions that standardise the manner in which commercial or industrial waste is sampled and tested for the purposes of categorisation. The provisions generally require sampling and testing to be carried out by an appropriately qualified person and in accordance with a protocol to be published by the regulator. Generators of waste who want to categorise waste via testing are only required to test those relevant attributes or substances that are likely to be present in the waste. The relevant attributes or substances to be tested are to be determined by an appropriately qualified person.
The provisions also state the timeframe that waste testing results remain valid and the triggers for earlier retesting. Under the new section 64E, an authorised person may request the retesting of waste in certain circumstances, resulting in previous test results no longer being valid.
A new offence provision is also created in respect of persons who wilfully tamper with a waste sample, interfere with testing of a waste sample or otherwise jeopardise the accuracy of test results for waste.
Under the new regime, where the retesting of waste results in waste being categorised as a higher risk waste category, such as category 2 regulated waste changing to category 1 regulated waste, the waste generator must notify the regulator within 24 hours after receiving the test results. Further prescribed information must be provided within 10 business days. Several new offence provisions have also been created to require generators and receivers of tested waste to keep records of the type, category and test results of tested waste.
What this means for waste generators
The new risk-based classification of waste means that generators of commercial or industrial waste can now further categorise regulated waste either through the default categorisation table or through testing. This sub-categorisation of regulated waste allows waste generators to better assess any pre-treatment options that will result in a reduction in the regulatory controls and costs of managing their waste.
Gerard Timbs, Partner
T: +61 7 3135 0644
Sonia Mortimer, Special Counsel
T: +61 7 3135 0681
Amelia Prokuda, Senior Associate
T: +61 7 3135 0513
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources.
Published by Sonia Mortimer