Publication
Mission impossible? Teresa Ribera’s mission letter and the future of EU merger review
Executive Vice President Vestager’s momentous tenure as Commissioner responsible for EU competition policy is nearing its end.
Australia | Publication | December 2021
The Victorian government recently introduced into the Parliament the Circular Economy (Waste Reduction and Recycling) Bill (Bill) which seeks to legislate a circular economy framework, create a new waste and recycling regulator and establish a container deposit scheme. The Bill has now passed both houses of Parliament and received royal assent on 14 December 2021. The new legislation is part of the Government’s $515 million investment to transition to a circular economy. It is not yet clear how the proposed investment will be made and what infrastructure will be funded to improve resource recovery capacity in Victoria.
On 1 November 2021, the Department of Environment, Land, Water and Planning (DELWP) also released its Waste to Energy framework (WtE framework) which sets out how the one million tonne cap per annum on waste being used for energy will operate. The WtE Framework does not form part of the Bill, but we expect amendments will be made to the Bill next year to legislate the WtE framework.
The Bill aims to give effect to the commitments of Recycling Victoria: A new economy by establishing a legislative framework to:
Recycling Victoria to be established by the Bill, will have a broad set of functions and powers (which will be subject to control of the Minister), including:
Under the Bill, Councils and providers of waste and recycling or resource recovery services will have certain positive obligations including:
That said, the Bill provides “checks and balances” in the form of review mechanisms applying to the numerous powers which Recycling Victoria will be able to exercise. For example, use of the exemption powers and the issuance of information gathering notices, improvement notices and prohibition notices will be reviewable at the Victorian Civil and Administrative Tribunal.
The Bill will create a CDS, for cans and bottle funded by the beverage industry. Under the CDS:
There will be a staged transition to a four bin collection system. All households will have access to services for glass recycling (purple bin) by 2027 and to food organics and garden organics by 2030.
DELWP has now released the finalised version of its WtE framework. This framework outlines how the one million tonne per annum cap (Cap) on the amount of waste that can be sent to thermal waste to energy until 2040 will operate. The Cap will be implemented in legislation (we expect amendments will be made to the Bill once it is in in force) and supported by regulations and by guidance issued by Recycling Victoria.
For the purposes of the Cap, ‘thermal waste to energy’ refers to any thermal process used:
There are a number of processes which are expressly excluded from being considered ‘thermal waste to energy’ under the WtE framework, including:
Importantly, facilities which were operating or had a planning permit on 28 June 2021 will not need to fall within the Cap but will otherwise need to hold a Cap licence to process permitted waste (Existing Permitted Facilities).
Under the WtE framework, waste will be divided into three categories (which will be based on suitability for use as feedstock):
From mid to late 2022, businesses that wish to operate a WtE facility will need to apply for a licence from the cap scheme regulator. It is anticipated that it will be an offence for a WtE operation to operate a WtE facility without a Cap licence or contrary to the conditions placed on the licence.
In this regard, Cap licences will place conditions on how operators can undertake thermal waste to energy activities under the Cap on matters such as quantity of waste permitted, reporting requirements, duration of licence, waste feedstock (if necessary) and financial close and commissioning deadlines. Existing permissions regulating matters such as human health, environment protection and planning requirements are not changed by the WtE framework.
The Cap regulator will call for expressions of interest (EOI) from prospective WtE operators to apply. The applicant will need to submit an EOI to register interest in accessing a Cap licence, addressing prerequisite information requirements.
Once EOIs have been received, the responses will be reviewed and relevant applications will be invited to submit a full application. Full applications will need to provide pre-requisite information and respond to evaluation criteria.
The Cap regulator will assess each application against fixed, transparent evaluation criteria (established in regulations and/or guidance published by the Cap regulator). Existing permit Facilities will not be assessed against the evaluation criteria or against other applications.
The criteria includes assessment against how well the facility meets a critical waste infrastructure need, alignment against policy, waste composition, the type of energy it will produce, how well demonstrated the proposed energy recovery technology is, the advancement of securing all relevant permissions and licences, greenhouse gas impacts and community engagement.
Any licence granted will contain conditions regarding the deadline for financial close and operational requirements. Licences will be granted to operators with the highest-ranked applications until there is no capacity remaining under the Cap.
Following the grant of a licence, the Cap regulator will monitor the operator’s progress towards reaching financial close and commissioning demonstrated by progress made towards securing waste supply contracts, energy agreements and financial contracts. If financial close or commissioning is not achieved in accordance with a licence, the Cap regulator can grant an extension, revoke the licence or reallocate the Cap allocation.
Once a WtE facility is operating, reporting obligations will apply on a quarterly basis. The Cap regulator will be able to enforce non-compliances with licence conditions (we anticipate in a similar way to the EPA which currently has enforcement powers related to matters arising under the EP Act).
Legislation will need to be introduced into the Victorian parliament, we expect amendments to the Circular Economy (Waste Reduction and Recycling) Act 2021, to give the Cap legal effect. Thereafter, there will be public consultation on the regulations which will detail the administration of the Cap with the intention that the new regulator, Recycling Victoria will commence in 2022, giving initial priority to granting the first round of Cap licences.
Publication
Executive Vice President Vestager’s momentous tenure as Commissioner responsible for EU competition policy is nearing its end.
Publication
On 10 October 2024, the UK government published its long awaited response (the Response) to its January 2024 consultation on “Designing a policy framework to enable investment in long duration electricity storage” (the Consultation).
Publication
Miranda Cole, Julien Haverals and Emma Clarke of our Brussels/ London offices are the authors of a chapter on procedural issues in merger control that has been published in the third edition of the Global Competition Review’s The Guide to Life Sciences. This covers a number of significant procedural developments that have affected merger review of life sciences transactions.
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