How will waste determinations work?

EPA seeks submissions on proposed waste determinations under new Environment Protection Act

Waste determinations are a new way to allow the unrestricted reuse of low-risk waste. Waste that complies with a determination can be reused without the need to obtain an EPA permission or paperwork. They will be introduced with the start of the new Victorian Environment Protection Act on 1 July 2021 (new EPA Act).

Contaminated soil removal, waste

The Victorian EPA has proposed waste determinations for four waste streams: organics, manures, fill and aggregates. Waste determinations will help deliver the Victorian Government’s circular economy objectives, reduce regulatory burden, and support the new EP Act.

You can make a submission on the proposed waste determinations here until 5pm on Thursday, 4 March 2021. 

Get in touch (by phone or email) if you need assistance.

What is a waste determination and what role do they play under the new EP Act?

Determinations will set out standards that industrial waste must comply with to allow unrestricted reuse without the need for an EPA permission or additional paperwork such as a declaration of use.  They provide a means to meet the industrial waste duties imposed under the new EP Act. 

More specifically, the new EP Act imposes a range of duties on waste generators, transporters and receivers.  Significantly, waste must be properly classified, transported, and received at a place that is authorised to receive that type of waste, also known as a lawful place.  Determinations assist duty holders to meet these obligations by establishing a lawful place for specified industrial waste without the need to obtain an EPA permission or complete paperwork provided that all of the conditions specified in the determination are met.  Other ways of establishing a lawful place under the new EP Act include permissions; permission exemptions; emergency authorisation; declarations of use (DoU); and deemed authorisations.

However, even where a determination is complied with, the general environmental duty (GED) will still apply under the new EP Act. The GED requires every individual and business to take reasonable steps to identify and manage risks of harm to the environment and human health associated with the activities they undertake.

The EPA proposed the four determinations in response to industry feedback on the proposed final Environment Protection Regulations (Regulations). There were concerns that reuse of some low-risk, high-volume wastes such as compost, manures, clean fill, and aggregates could be discouraged by the administrative burden of needing to complete declarations of use.  The determinations seek to address these concerns, support compliance with the GED, set industry benchmarks and identify material that is suitable for unrestricted reuse.

What are the proposed waste determinations?

The four proposed determinations are:

  • Processed Solid Organic Waste Determination (Organic Waste Determination)
  • Manures, Animal Wastewater and Effluent Determination (Manures Determination)
  • Fill Material Determination
  • Aggregates Determination.

The detail of each determination largely follows existing requirements and industry standards, but some important changes are being proposed.

Proposed Organic Waste Determination

According to the EPA’s Discussion Paper, “Organic waste is a broad term which includes any material that is produced from natural or biodegradable material. It includes wastes derived from animal and plant matter … [and] … includes post-consumer organic wastes such as household organics in kerbside collections (green-lid bins), as well as pre-consumer organic wastes which arise from food production processes or are unwanted due to over-production or failure to meet product specifications”.  The proposed Organic Waste Determination is intended to apply mainly to outputs from aerobic (rather than anaerobic) processes.

Waste, recycling, rubbish

The standards under the proposed determination reflect the existing limits in Designing, constructing and operating composting facilities (EPA publication 1588) and are aligned with existing industry standards including Australian Standard AS4454.  However, the proposed determination goes further than current requirements.. It also addresses risks associated with spore forming bacteria when FOGO (food organics and garden organics) or wastes containing animal materials (including abattoir and grease trap waste) are used as feedstock in organic waste processing, by introducing a spore forming bacteria upper limit and minimum maturity specifications.

The EPA is seeking feedback from industry on the workability of these proposed standards.

 If material does not meet the proposed Organic Waste Determination, a DoU is still available to establish a lawful place. The EPA is also proposing “Industry-set DoU (self-assessed)”s for the use of untreated timber, natural fibrous materials, garden and landscaping materials not containing physical of chemical contaminants where these materials are not covered by a determination, and potential future “EPA-set DoU”s to cover specific situations that do not meet the proposed Organic Waste Determination.

Manures Determination

The proposed Manures Determination will cover:

  • manure waste from livestock industries such as piggeries, dairy and poultry farming and egg production, including solid manure, urine, animal bedding and wasted feed; and
  • animal wastewaters and effluent, including dairy shed effluent and pond slurry from effluent ponds, when deposited onsite.[1] 

Because the discharge or deposit of less than 20 cubic meters per month of solid manure has the benefit of a deemed authorisation under the Regulations, the proposed determination will apply to solid manures received at rates higher than this.

The proposed Manures Determination is based on existing best practice guidance, including the National Environmental Guidelines for Piggeries, Victorian Code for Broiler Farms, environmental guidelines for the egg industry, guidelines for on-farm food safety, and was developed in consultation with AgVic, the agency responsible for regulates biosecurity and produce safety in the sector.  Manures used on or offsite must not contain physical contaminants including plastic and other wastes, as far as reasonably practicable.

Initial feedback on this determination indicates that there may be industry concern about the requirement that manures must be free from mortalities, as far as reasonably practicable. 

Fill Material Determination

“Fill material” is waste soil which has contaminant concentrations not exceeding the upper limits for fill material contaminant concentrations specified in the Waste Disposal Categories —Characteristics and Thresholds (EPA publication 1828) and does not contain asbestos.

The ability to reuse fill material in an efficient manner without unnecessary regulatory burden is important both in terms of circular economy goals and operationally on construction sites, including major projects.  As many in the industry know, the category of ‘clean fill’ has been used and abused by unscrupulous waste operators over the years, making it difficult for honest operators to compete and consumers to have confidence in the market. 

The proposed Fill Material Determination is intended to address these issues by setting a clear and consistent benchmark to allow the unrestricted use of more than 5 cubic meters of fill material at a place or premises.  Where the specifications in the determination are not met, the fill material may still be able to be used with controls applied under a specific DoU.  Amounts of 5 cubic meters or less have the benefit of a deemed authorisation of lawful place under the Regulations.

The fill material determination is based on existing industry practices, including the National Environment Protection (Assessment of Site Contamination) Measure 1999 (NEPM(ASC)) and sets physical contamination and aesthetic criteria that must be met.  In addition, the fill material must be sourced from greenfield sites or sites previously used for residential or sensitive land uses only and must not be from brownfield sites or sites previously used for industrial or commercial purposes or sites with heavy pesticide use.  These source requirements will limit the use of the proposed Fill Material Determination and may be an issue for submissions by industry.

Aggregates Determination

The proposed Aggregates Determination only applies to recycled aggregates defined as “any industrial waste or a mixture of industrial waste that comprises of crushed: concrete, rick, ceramics or natural rock”.  The inclusion of the requirement for the material to be crushed is intended to ensure that illegal dumping of C&I waste does not come within the proposed determination.

Similar to other proposed determinations, the proposed Aggregates Determination has physical and contamination requirements.  The recycled aggregate will also need to comply with the fill material upper limits set out in Waste disposal categories – characteristics and thresholds (EPA publication 1828).  The EPA is seeking submissions on the workability of these requirements.

There have been some queries as to why the proposed determination does not include crushed glass, particularly given the growing use of crushed glass in road applications.  The EPA has indicated that further work on the requirements for unrestricted reuse of crushed glass would be required to address risks, including combustion risks of contaminated glass material.

Make your submission now

Submissions on the Discussion Paper can be made up until 5pm on Thursday, 4 March 2021.  You can make a submission here.

Get in touch if you require any assistance making a submission or have any queries relating to the proposed determinations or the new EP Act.


[1] Note that an EPA permission may be in place where the primary activities onsite are a scheduled activity, such as operating a piggery, cattle feedlot, sheep feedlot, goat feedlot, goat dairy or dairy freestall with more than 5000 animals.

Meredith Gibbs

Meredith Gibbs
Meredith Gibbs is the driving force behind Gibbs Advisory.

She is passionate about providing pragmatic, commercial advice and finding clear pathways through complex situations. Meredith is focused on getting to the heart of the issues and uncovering win-win solutions.

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Meredith Gibbs

Gibbs Advisory – Principal

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