| Section 14 of the National Environment Protection Council Act 1994 and the equivalent provision of the corresponding Act of each participating State and Territory provides for the making of Measures by the NEPC and the matters to which they may relate. This Measure relates to the matters set out in paragraphs 14(1)(a), (b), (e), and (f). The Measure is to be implemented by the laws and other arrangements participating jurisdictions consider necessary: see section 7 of the Commonwealth Act and the equivalent provision of the corresponding Act of each participating State and Territory. |
Part 1 Preliminary
1 Title
This Measure may be cited as the National Environment Protection (Movement of Controlled Waste between States and Territories) Measure.
2 Commencement
This Measure commences on the date of gazettal of this Measure.
3 Definitions
In this Measure, unless the contrary intention appears:
Agency means a body or bodies of a participating State or a participating Territory which that State or Territory has nominated for the purposes of this Measure.
Agreement means the Intergovernmental Agreement on the Environment made on 1 May 1992 between the Commonwealth, the States, the Australian Capital Territory, the Northern Territory and the Australian Local Government Association, a copy of which is set out in the Schedule to the Commonwealth Act.
Approved extended producer responsibility scheme means a scheme approved by the affected participating jurisdictions.
Approved recycling scheme means a scheme approved by the affected participating jurisdictions.
Commonwealth Act means the National Environment Protection Council Act 1994 of the Commonwealth.
Consignment Authorisation means an approval which includes a unique identifier granted by an agency or a facility delegated by an agency in the jurisdiction of destination to allow the movement of controlled waste.
Controlled Waste means any waste in List 1 provided that the waste possesses one or more of the characteristics in List 2. Unless otherwise demonstrated to the satisfaction of the nominated agency in the jurisdiction of destination, wastes in List 1 are considered to possess one or more characteristics in List 2.
Council means the National Environment Protection Council established by Section 8 of the Commonwealth Act and the equivalent provisions of the corresponding Acts of participating States or Territories.
Facility means a place where controlled wastes are received.
Facility Operator means a person in charge of a facility.
Jurisdiction of Origin in relation to a particular consignment of waste means the State or Territory from which the waste is generated or transported.
Jurisdiction of Destination in relation to a particular consignment of waste means the State or Territory in which the facility is located to which the waste is intended to be transported.
Jurisdiction of Transit in relation to a particular consignment of waste means any State or Territory through which the waste is transported to another State or Territory.
Licence means a licence, authorisation, permit, notice or approval granted by an Agency in relation to a vehicle for the purpose of moving controlled wastes.
Measure means national environment protection measure.
National environment protection goal means a goal that:
(a) relates to desired environmental outcomes; and
(b) guides the formulation of strategies for the management of human activities that may affect the environment.
National environment protection guideline means a guideline that gives guidance on possible means for achieving desired environmental outcomes.
National environment protection measure means a measure made under section 14(1) of the Commonwealth Act and the equivalent provisions of the corresponding Acts of participating States or Territories.
Participating jurisdiction means the Commonwealth, a participating State or a participating Territory.
Participating State means a State:
(a) that is a party to the Agreement; and
(b) in which an Act that corresponds to the Commonwealth Act is in force in accordance with the Agreement.
Participating Territory means a Territory:
(a) that is a party to the Agreement; and
(b) in which an Act that corresponds to the Commonwealth Act is in force in accordance with the Agreement.
Producer means a person who produces controlled waste or a person, authorised by an agency in the jurisdiction where the controlled waste is produced, to act on behalf of the producer.
Transporter means a person responsible for moving controlled wastes either from one participating State or Territory to another or through participating States or Territories.
Vehicle means a conveyance that is designed to be propelled or drawn by any means which is used for the movement of controlled wastes by land, air or water and includes trailer, railway locomotive or rolling stock, ship, boat or aircraft used for such purpose.
Waste means any:
(a) discarded, rejected, unwanted, surplus or abandoned matter; or
(b) otherwise discarded, rejected, unwanted, surplus or abandoned matter intended for:
(i) recycling, reprocessing, recovery, reuse, or purification by a separate operation from that which produced the matter; or
(ii) sale,
whether of any value or not.
4 Head of power for making this Measure
This Measure is made pursuant to section 14(1) of the Commonwealth Act, and in particular, paragraphs (a), (b), (e), and (f) of that section, and the equivalent provisions of corresponding Acts in other participating States and Territories.
5 Scope
This Measure is to provide a national framework for developing and integrating State and Territory systems for the management of the movement of controlled wastes between States and Territories originating from commercial, trade, industrial or business activities. These management systems include:
(a) tracking systems which would provide information to assist agencies and emergency services, and would ensure that controlled wastes are directed to and reach appropriate facilities;
(b) prior notification systems which would provide participating States and Territories with access to information, to assess the appropriateness of proposed movements of controlled wastes in terms of transportation and facility selection; and
(c) the licensing of transporters and regulation of producers and facilities so that tracking and notification functions are compatible with participating State and Territory requirements.
For the avoidance of doubt, it is noted that this Measure relates to the movement of wastes between States and Territories within Australia, and is not intended to have any direct or indirect bearing upon Australia’s international rights or obligations with respect to the international movement of waste.
6. Schedule A to the Measure
Schedule A in this Measure identifies and lists:
(a) all categories of matter for the purposes of the definition of controlled waste in clause 3 of this Measure;
(b) characteristics of controlled wastes for the purpose of the definition in clause 3 of this Measure.
7. Schedule B to the Measure
Schedule B in this Measure identifies the information to accompany the movement of controlled wastes and for reporting as required by this Measure.
8. Exclusions to the Measure
This Measure does not apply to:
(a) the intrastate/intraterritory movement of controlled wastes;
(b) a movement of controlled waste, which for logistical reasons (for example, closer proximity), and as agreed to between the jurisdiction of origin and the jurisdiction of transit, enters the jurisdiction of transit prior to returning to a facility in the jurisdiction of origin;
(c) the movement of controlled wastes or other wastes in accordance with the Hazardous Waste (Regulation of Exports and Imports) Act 1989;
(d) an emergency which requires urgent action to protect human life, the environment and/or property;
(e) controlled wastes:
(i) to be used in analysis for waste categorisation;
(ii) to be used in research subject to approval by an agency in the jurisdiction of destination;
(f) the movement of controlled wastes by pipeline;
(g) containers destined for direct refilling with the same substance in which there remains small amounts of residues of a substance on List 1; or
(h) the movement of unwanted farm chemicals by a farmer or property owner, without fee or reward, for the purposes of delivering such chemicals to a designated collection place under a collection scheme approved by the affected jurisdictions.
(i) the movement of controlled wastes subject to product recall approved by the Australian Pesticides and Veterinary Medicines Authority, Food Standards Australia New Zealand, or Therapeutic Goods Administration.
9. Exemptions allowed by the Measure
(a) Geographical exemption
The movement of a specified controlled waste stream from a defined geographic area in one jurisdiction to a defined geographic area or facility in another jurisdiction may be exempted from one or more of clauses 13(f), 13(g), 13(h), 13(i) and 13(j) of the Measure.
(b) Direct reuse exemption
Controlled waste which is destined for direct reuse without prior treatment or processing as an input into the manufacture of a product whether or not for sale may be exempted from one or more of clauses 13(f), 13(g), 13(h), 13(i), 13(j)(iii), 13(j)(iv), and 13(j)(v) of the Measure.
(c) Extended Producer Responsibility exemption
Controlled waste which is subject to an approved extended producer responsibility scheme may be exempted from one or more of clauses 13(f), 13(g), 13(h), 13(i), 13(j)(iii), 13(j)(iv) and 13(j)(v) of the Measure.
(d) Approved Recycling Scheme exemption
Controlled waste which is subject to an approved recycling scheme may be exempted from one or more of clauses 13(f), 13(g), 13(h), 13(i), 13(j)(iii), 13(j)(iv) and 13(j)(v) of the Measure.
Exemptions under 9(a), and 9(b) may only be given if:
(i) such an exemption is formalised through written agreement by the affected jurisdictions.
(ii) the written agreement is provided as part of those jurisdictions’ public reporting obligations; and
(iii) those jurisdictions consider that the exemption does not derogate from the goal of this Measure.
10. Review of the Measure
(a) Council envisages that this Measure shall be subject to a comprehensive review five years from the date of commencement, which will consider:
(i) the effectiveness of the Measure in achieving the national environment protection goals set out within it;
(ii) the resources available for implementing the Measure; and
(iii) the need, if any, for amending the Measure, including:
(i) whether any changes should be made to the Schedules; and
(ii) whether any changes should be made to improve the effectiveness of the Measure in achieving the national environment protection goals set out within it.
(b) To amend schedules in this Measure, Council, in compliance with section 20 of the Commonwealth Act, may utilise processes which comprise, but are not restricted to a nomination process. Such a process would:
(i) not incur a fee, but would need to be justified and have the support and sponsorship of a participating jurisdiction for submission to Council;
(ii) take place periodically; and
(iii) allow advice to be sought as may be required.
Part 2 National environment protection goal
11 Goal for this Measure
The national environment protection goal of this Measure is to assist in achieving the desired environmental outcomes set out in clause 12 by providing a basis for ensuring that controlled wastes which are to be moved between States and Territories are properly identified, transported, and otherwise handled in ways which are consistent with environmentally sound practices for the management of these wastes.
12 Environmental outcome for this Measure
The desired environmental outcomes of this Measure are to minimise the potential for adverse impacts associated with the movement of controlled waste on the environment and human health.
Part 3 National environment protection guidelines
13 Features for the establishment of a system for the movement of controlled wastes
The Council provides the following guidance on possible means for achieving the desired environmental outcomes:
Licensing and mutual recognition
(a) Each participating State or Territory, where it is the jurisdiction of origin, should ensure that the movement of controlled waste from its jurisdiction to or through another participating State or Territory should be subject to a licence having sufficient control over the carriage of that waste to enable agreement to mutual recognition between participating States or Territories;
(b) Participating States and Territories should agree to recognise, for the purpose of the movement of controlled waste between states and territories only, the licence issued by the jurisdiction where the transporter is established for business purposes;
(c) Participating States and Territories should agree to the mutual recognition of licences within 6 months of this Measure coming into effect;
(d) Participating States and Territories should make any necessary adjustments to their legal and administrative framework to implement the agreement referred to in (c) above within 18 months of that agreement being reached;
(e) it is envisaged that jurisdictions should implement the measure as quickly as possible, but not later than 2 years from the commencement of the Measure.
Prior Notification and Consignment Authorisations
(f) Each participating State and Territory should ensure that a producer intending to move controlled wastes to another jurisdiction obtains a consignment authorisation from an agency of the jurisdiction of destination, or from a facility delegated by that agency, prior to the movement of such wastes;
(g) The participating State or Territory of origin and destination should ensure that, prior to a consignment authorisation being issued consultation is undertaken, wherever necessary, to determine the appropriateness of issuing a consignment authorisation;
(h) In consideration of a completed application for a consignment authorisation, each participating State and Territory should take certain matters into consideration. These should include, but not be limited to:
(i) whether the facility to which the controlled wastes are directed is appropriately licensed or approved by the agency in the participating State or Territory of destination to receive the controlled waste; and
(ii) relevant environmental protection policies and legislation of participating jurisdictions which will assist in meeting the desired environmental outcomes.
Waste Tracking
(i) Schedule B consists of three parts:
(i) part 1 identifies information to be provided by producers;
(ii) part 2 identifies information to be provided by transporters; and
(iii) part 3 identifies information to be provided by facilities.
Each participating State or Territory should ensure that all controlled wastes transported in accordance with this Measure are accompanied by the information set out in part 1 and part 2 of Schedule B, and that part 3 of Schedule B is completed by a facility upon acceptance of the waste;
Obligations
(j) Each participating State or Territory should ensure that the:
(i) producer provides relevant information as set out in part 1 Schedule B;
(ii) transporter carries information as described in part 1 and 2 Schedule B when transporting controlled waste;
(iii) facility operator provides information described in part 3 Schedule B as required by participating States or Territories;
(iv) agency, or facility delegated by an agency, in the participating State or Territory of destination issues, or refuses to issue, a consignment authorisation within 5 working days following the receipt of a completed application;
(v) the agency or delegated facility should provide an explanation to the applicant of the reason for refusal of a consignment authorisation consistent with its obligations under relevant State or Territory legislation.
Maintenance of records
(k) Each participating State or Territory should ensure that records of the data generated by the tracking system in relation to requirements which are contained in Schedule B, are kept for a period of not less than 12 months.
Furnishing of information to Council
(l) In order to facilitate annual reporting on the implementation and effectiveness of the Measure, as required by section 23 of the Commonwealth Act and corresponding sections of the State and Territory NEPC Acts, the relevant agency of each participating State and Territory should provide collated summary information on the:
(i) movement of controlled waste into each jurisdiction, indicating jurisdiction of origin, waste code and quantity of waste;
(ii) level of discrepancies (eg non-arrival of a consignment) as a percentage of total authorised controlled waste movements; and
(iii) benefits arising from the implementation of the Measure.
14. Failure to provide information, or giving false or misleading information
Council envisages that, where a producer, transporter or facility operator does not furnish information required to an agency of the relevant participating State or Territory or provides false or misleading information, enforcement action will be taken by that jurisdiction in accordance with the following:
(a) the nature of the offence, including the intent of the offender and whether it is a repeat occurrence; and
(b) the effectiveness in achieving the desired outcome.
15. Confidentiality
Council envisages that all participating States or Territories shall respect commercial confidentiality of facility operators, transporters, and producers, and that for any claim for confidentiality the jurisdiction will endeavour to apply the following principles:
(a) that claims will only be considered if they involve either commercially sensitive information or issues of national security;
(b) that the onus of substantiating a claim for confidentiality will rest with the producer, transporter, or facility operator;
Claims for confidentiality will be assessed:
(i) by the Commonwealth on the grounds of national security, within the legislative framework existing in the Commonwealth at the time, including the Freedom of Information Act 1981 (Commonwealth) where applicable; and
(ii) by the appropriate participating State or Territory on the grounds of commercial sensitivity, in accordance with the legislative framework existing in that State or Territory at the time.