The amended Victorian legislation, the Environment Protection Act 2017 (the EPA Act) comes into effect on 1 July 2021 where some parts of the law will come into effect gradually, and other elements will be enforceable from day one. The Environment Protection Authority Victoria (EPA Victoria) stipulates the new regulatory framework is aimed to provide clarity and certainty for businesses by focusing compliance obligations on the preventative actions that can be taken to prevent harm before it occurs. It does so by introducing increased flexibility and proportionality to risk through the general environmental duty (GED), complimentary tools in the licencing, permission and registrations sphere, and the management of contamination and waste. Effectively, the new framework will enable EPA Victoria’s intervention earlier and hold duty holders to account for the establishment of all reasonably practicable controls to reduce or eliminate risk to health and the environment.
Envirolab Services Melbourne has been working to implement operational changes as we transition to the new regulatory framework. In our commitment to offering quality laboratory services in environmental contamination, Envirolab Melbourne achieved NATA Accreditation for EDTA (Ethylenediaminetetraacetic acid) in 2020. This means our laboratory is accredited for the entire suite of publication 1828.2: waste disposal categories - characteristics and thresholds, which will replace protocol 1828.1 from 1 July 2021.
At the time of achieving accreditation with the nationally recognised testing body, NATA, Group Commercial Manager, David Springer said, "This accreditation is great news for our Melbourne lab's environmental contamination testing services capabilities and especially helpful for IWRG631 and the new waste disposal categories in Victoria."
However, the new framework has presented a learning curve as businesses and households in Victoria adjust to some of the changes. Business Development Manager of our Melbourne lab, Analisa Mathrick added, “Particularly over the last year and in the lead-up to these changes, we have received so many queries from clients.”
“Some of the changes might initially appear complicated and daunting for many where it may take some time to get familiar with the new requirements. We look forward to working with a more modernised governance of environmental protection that will ultimately enable our clients to make more informed decisions and better manage any potential risks related to health and the environment.”
In a series of articles, we briefly explore some changes and queries raised. The remainder of this article explores some of the changes with a focus on the publication 1828.2: waste disposal categories – characteristics and thresholds, which will replace protocol 1828.1 on 1 July 2021.
Duties to manage and notify EPA Victoria about contaminated land
The EPA Act introduces two new duties for persons who are in management or control of contaminated land: a duty to manage contaminated land; and a duty to notify EPA Victoria about contaminated land.
Under the first duty, a person in management or control of contaminated land must minimise risks of harm to human health and the environment from the contaminated land so far as reasonably practicable (Section 39). This establishes a risk-based proportionate obligation on those in management or control of contaminated land to manage its risks.
The second duty requires a person in management or control of land to notify EPA Victoria if the land has been contaminated by notifiable contamination as soon as practicable after the person becomes aware of, or reasonably should have become aware of, the notifiable contamination (Section 40). The duty to notify requires a person in management or control of contaminated land to notify EPA Victoria when contaminants in soil, groundwater or surface water are above certain concentrations and other circumstances set out in the regulations apply, such as whether a person is likely to be exposed to the contaminant. The concentration above which notification is required is provided by the regulations, such as friable asbestos under certain circumstances and all circumstances of non-aqueous phase liquids (NAPLs).
Waste disposal categories – characteristics and thresholds
When classifying soil, duty holders must test for all contaminants that are reasonably expected to be in the soil. EPA Victoria has explained there was not a requirement to test for all contaminants or analytes listed in EPA Victoria’s 1828 publication. The new framework requires testing contaminants or analytes that you reasonably expect to be in the soil.
The proposed regulations support compliance with the industrial waste duties through a three-step process: industrial waste, priority waste and reportable priority waste. Depending on the classification applied, there are less or more obligations to control the risk of harm. These processes are briefly explored below.
1. Industrial Waste
Duties of persons depositing industrial waste.
Duties of persons receiving industrial waste - a 'lawful place.'
Duties of persons involved in transporting industrial waste.
2. Priority Waste
3. Reportable Priority Waste
Credit: EPA Victoria (3 February 2021).
Under the new EPA Act, the definitions of waste and industrial waste are broadly defined as any waste arising from commercial, industrial, or trade activities, or from laboratories. The Act requires that industrial waste may only be received somewhere that has a lawful authority to receive it, a ‘lawful place.’
The main industrial waste offence has been split into three waste duties that assign obligations depending on whether you generate industrial waste, transport it, or receive it. This supply chain framework allows the EPA Victoria to target non-compliance and waste crime and generally support a more preventative approach to waste.
Formally titled, “prescribed industrial waste,” the new framework introduces the new reference, “priority waste” where a number of standing obligations will apply to classifying, isolating and containing such waste. These duties will be supported by reporting and permitting requirements, which are similar to the current requirements.
Reportable priority waste
As a subset of priority waste, this classification carries the highest level of requirements because it concerns the highest levels of capacity for mismanagement. Some controls for these wastes include restricting transportation to permitted vehicles and mandatory reporting to EPA Victoria each time the waste changes hands. Examples of waste under this category are pesticides, solvents, asbestos and grease trap wastes. Reportable priority waste also generally includes substances that are also covered by dangerous goods legislation.
For further information, please refer to publication 1827.2: waste classification assessment, available at the EPA Victoria website, and which will apply from 1 July.
Proposed Streamline Classification for contaminated soils
The new framework proposes a new and incorporated document, which provides characteristics and thresholds for complying with the new framework. The incorporated documents set out waste disposal categories of soil as falling under the Categories, A, B, C, or D; soil containing asbestos only; or fill material.
Briefly exploring the categories under the revised framework, Categories A, B, and C are similar to categories in the current prescribed industrial waste framework.
Category D will be a new category of contaminated soil waste. Defined in Schedule 6 of the framework, Category D, directs to the EPA Victoria's publication 1828. Category D forms the lower range of the current Category C, allowing for restricted use of waste soil where no further damage to land will occur – that is, low-level contaminated soils and it is intended to support limited containment options within infrastructure projects and safely divert these materials from hazardous waste landfills. For example, Category D may be suited to large precinct-style developments, such as shopping centres or large remediation projects of former industrial sites spanning multiple property parcels.
The new category, ‘asbestos contaminated only,’ is as the name implies, for soil where the only contaminant in the soil is asbestos. It cannot be used for limited containment like Category D, and it will not have to go to a Category C landfill. This category will require generators and receivers of fill material soils to hold a declaration of use.
In getting familiar with the new classification, some concerns have been raised for emerging contaminants, including PFAS, and whether the new waste disposal categories can support the evolving science around this contaminant – how do these changes sit with the PFAS National Environmental Management Plan (PFAS NEMP) or EPA Victoria’s interim position statement on PFAS (Publication 1669.4)? Alternatively, would these proposed thresholds unnecessarily result in greater volumes of soil being classified under Category D, thus creating a significant burden on landfills and limiting reuse and sustainability options?
In working closely with stakeholders across various affected industries, EPA Victoria advised that thresholds for PFAS were removed from the proposed waste disposal categories, to enable flexibility and keep pace with the evolving science. PFAS contamination will be assessed on a case-by-case basis in line with the best available science, consistent with the PFAS NEMP.
Soil testing at Envirolab Services
Where contamination testing is required, how do you ensure that you are accurately testing to identify contaminants or analytes in the soil? When testing is required, such as for the leachable concentration or total concentration, EPA Victoria specifies under publication 1828.2 that testing must be conducted by a National Association of Testing Authorities, Australia (NATA) accredited laboratory.
Envirolab Services Melbourne is NATA accredited for the entire 1828.2 suite with our testing capabilities including the following:
|1828.2 – Table 3 - Fill
||MAH, VHC, TRH, PAH, Phenols - Speciated, OCP, PCB, CN - Total, Fluoride - Total (Fusion), Cr(VI), Metals (Ag, As, Cd, Cu, Hg, Mo, Ni, Pb, Se, Sn, Zn), pH (1:5 water soluble).
|1828.2 – Table 2 - Comprehensive
||VOC (Incl MEK & DCM), TRH, PAH, Phenols - Speciated, OCP, PCB, 2,4-DNT, bis(2-ethylhexyl)phthalate), Nitrobenzene, Formaldehyde (Colourmetric), Fluoride - Total (Fusion), CN - amenable, CN - Total, Cr(VI), Metals (Ag, As, Ba, Be, B, Cd, Cu, Hg, Mo, Ni, Pb, Sb, Se, Zn), pH (1:5 water soluble), 2,4-D, TBT, EDTA.
|1828 – Table 2 - (Excl EDTA and TBT)
||VOC (Incl MEK & DCM), TRH, PAH, Phenols - Speciated, OCP, PCB, 2,4-DNT, bis(2-ethylhexyl)phthalate), Nitrobenzene, Formaldehyde (Colourmetric), Fluoride - Total (Fusion), CN - amenable, CN - Total, Cr(VI), Metals (Ag, As, Ba, Be, B, Cd, Cu, Hg, Mo, Ni, Pb, Sb, Se, Zn), pH (1:5 water soluble), 2,4-D.
|ASLP anions - Table 2
||I, Cl, NO2, NO3.
EDTA testing is available in a turnaround of 48 hours for results.
Our Melbourne lab is compliant with Environment Protection Regulations and guidelines including 1828.2: waste disposal categories - characteristics and thresholds, as published by EPA Victoria; NEPM HIL/EIL/GIL and the Other Capabilities South Australian EPA for Waste Fill.
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Additional information and resources
More information about waste duties, waste framework, waste classification codes, disposal categories and Declaration of Use and the other changes to be introduced with the new legislation can be found in the Regulations and the EPA Victoria website.
Publication 1828.2: Waste disposal categories - characteristics and thresholds will replace 1828.1 on 1 July 2021.