Australia | Publication | December 2020
On December 16, 2020, the proposed final Environment Protection Regulations (Regulations), Environment Protection Transitional Regulations (Transitional Regulations) and Environment Reference Standard (ERS) were released. Early release of these documents is intended to assist duty holders in providing further clarity and certainty as they prepare for the commencement of the new environmental protection regime in 2021.
The Regulations, Transitional Regulations and ERS have been released in their proposed final form but are yet to be made as legislation by Governor in Council. Together this package of subordinate legislation will support the Environment Protection Act 2017 (Act) and is intended to commence on July 1, 2021 at the same time as the amendments to the Act.
The second drafts incorporate changes based on feedback received during the consultation period which followed the release of the first drafts in September 2019. During the 60-day consultation period over 300 submissions were made regarding over 2000 issues. Despite being second drafts, the Regulations, Transitional Regulations and ERS represent the endorsed position of the Government and there will be no further consultation process.
The updated drafts have refined some key concerns raised during the consultation period, notably in relation to contaminated land and waste issues, which were the subject of the majority of the submissions. That said, numerous parts of the Regulations remain unchanged from the first draft either because the Regulations will be supported by further guidance material to be released by the Environment Protection Authority (EPA) or the Government considered no change was warranted.
The table below summarises some of the material changes which will take effect under the Regulations, Transitional Regulations and ERS.
| Contaminated Land | ||
| Key issue | Change | Reference |
| Notification of contaminants | Thresholds have been modified for notifying ground and surface water contamination. The duty to notify of groundwater contamination is limited to when the groundwater may be used for specific activities or discharges into surface water (such as human consumption or contact, stock watering or irrigation). However, no changes were made in relation to reporting asbestos contamination or emerging contaminants. |
Regulation 10 |
| Waste | ||
| Key issue | Change | Reference |
| Removal of PFAS contaminant thresholds from the Waste Disposal Categories – Characteristics and Thresholds (WDC) document |
PFAS contaminant thresholds have been removed from the proposed final WDC document to avoid inconsistency with the PFAS National Environmental Management Plan (PFAS NEMP) and will be assessed on a case-by-case basis consistent with the PFAS NEMP. | N/A - removed from WDC document. See PFAS NEMP for best practice |
| Mixing, blending or diluting priority waste | The prohibition on mixing, blending or diluting waste will remain, but the Regulations have been modified to allow the EPA to issue a designation to enable priority waste to be mixed, blended or diluted to facilitate legitimate reuse and waste to energy projects. | Regulation 70 |
| Longer preservation of waste classifications made under the Environment Protection (Industrial Waste Resource) Regulations 2009 |
The Transitional Regulation preserving waste classifications has been extended from one year to two years from the commencement of the new Act (i.e. until June 30, 2023). |
Transitional Regulations - Regulation 8(2) |
| Changes to Declarations of Use (DoU) requirements |
DoUs remain, but have been modified to be less onerous. Providers of waste will not be required to set out the purposes and circumstances in which waste can be used. Fill material generated and reused within the same cadastral boundary will not need a DoU. Low-risk wastes (fill material, processed solid organic wastes, construction and demolition aggregates) will not require a DoU. Instead, the EPA will develop separate determinations to manage applicable risks. The 60-day limit on temporary storage of fill material under a DoU has been removed. |
Regulation 64 |
| Contaminated soil reuse at sites with elevated background levels | The Regulations enable the EPA to issue designations to change the classification of soils to ‘fill material’ where the soil originates from areas with natural or human induced elevated levels. |
Regulation 86 |
| Permissions | ||
| Key issue | Change | Reference |
| Change to the definition of ‘project site’ in relation to Category D contaminated soil | The Regulations have been modified to broaden the definition of ‘project site’ to enable the EPA to issue a permit to allow lower-level contaminated soils (Category D waste soils) to be reused and contained on large scale public infrastructure projects (including involving disconnected parcels of land). |
Regulation 4 (Definitions) |
| General exemptions for certain discharges |
The Regulations have been modified to retain existing exemptions in relation to:
|
Regulations 38-40 |
The Government’s response to the public comments regarding the Regulations can be viewed on the EPA website together with the Regulations, Transitional Regulations, the ERS and five EPA publications, which will be incorporated into the Regulations once made to support their operation.
We expect the EPA to release further guidance material in the lead up to the commencement of the Regulations and Act and we will provide further updates on the implications of the Regulations as the commencement of the new regime gets closer.
Please contact a member of our Environment and Planning team if you require further information about how these changes may affect you.
The authors acknowledge the contributions of Sebastian Withers in preparing this update
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