EPA Subordinate Instruments Submission
7 November 2019
Public Comment Team
GPO Box 4395
Via email: firstname.lastname@example.org
Re: Proposed EPA subordinate legislation
The VicWater submission to 2015 Independent Inquiry in to the EPA began by noting the following:
The EPA is an important partner to the Victorian water industry with a significant role in investment decisions, infrastructure and operational matters. The water industry’s relationship with the EPA is also multi-faceted; at times water corporations are regulated entities, co-regulators, and reliant on the EPA to protect the environment that provides cost-effective, fit-for-purpose water to Victorians.
The purpose of referencing the 2015 submission is to focus attention on the EPA and water industry’s shared interests and objectives for environmental protection. Water corporations are overwhelmingly beneficiaries of better protection of the environment and human health and the water Industry is unanimously supportive of the reforms which originated from the Independent Inquiry into the EPA. In particular, the Environment Protection Amendment Act 2018 and the General Environmental Duty (GED) which is greatly expanding the reach of environment protection powers to tackle diffuse pollution.
Water corporations will be subject to provisions in the draft regulations in their capacity as managers of external waste streams – not as waste generators per se. As such, the focus of this submission is on maximising the opportunities to promote better environmental outcomes on a co-regulatory and shared basis, as well as making the water industry’s management of community and industrial waste streams as efficient and effective as possible. The submission will focus on the following areas: (1) emerging contaminants and trade waste, (2) septic tanks, (3) permissioning, (4) environmental reference standards, (5) waste, (6) fees, and (7) contaminated land.
Emerging contaminants and Trade Waste Agreements
Through the Melbourne Water Integrated Sewerage Quality Management System and the VicWater emerging contaminants risk assessment, the water industry is taking proactive steps toward complying with the GED by identifying and assessing emerging contaminant risks to the environment and public health.
Emerging contaminants create a range of new challenges for water corporations:
- They are often persistent chemicals that most wastewater treatment plants were not designed to eliminate;
- They may be illegally dumped in the sewer, or from diffuse sources;
- There is limited understanding of ‘safe’ levels for many emerging contaminants;
- They are in low concentrations often very expensive to detect; and
- There are limited cost effective treatment options currently available.
Trade waste and residential sewage are both significant sources of emerging contaminants. Wastewater treatment plants are generally not designed to treat and remove many emerging contaminants. If emerging contaminants are present in the raw sewage, they will also be present in biosolids, discharge and reuse water.
Water corporations don’t wish to avoid responsibility for managing emerging contaminant risks in the discharge and understand the need to continually assess new technologies to eliminate or reduce risks as part of the GED. However, a focus on the wastewater treatment plant outfall is unlikely to result in the adoption of controls to reduce risks from many emerging contaminants, simply because reasonably practicable controls will likely remain unavailable for the foreseeable future. Care should be taken to craft regulatory instruments such as these Regulations to enable a shared, co-regulatory effort by water corporations and the EPA to tackle some emerging contaminant risks at their source rather than focusing compliance activity exclusively on the wastewater treatment plant discharge.
Trade waste agreements
Regulation 63 (d) specifies that any waste can be discharged to the sewer in accordance with a Trade Waste Agreement (TWA). The clause, as written, potentially undermines the GED because it defines compliance for waste emitters as per the specifications of the TWA, not a broader consideration of understanding risks and adopting reasonably practicable controls at the source.
Compliance with a TWA cannot be assumed to guarantee that reasonably practicable measures have been taken to manage risk at the source – particularly if the TWA is silent on important emerging contaminants. A brief survey of water corporations, conducted as part of preparing this submission, reveals the following challenges with the TWA regime:
- Monitoring compliance with TWA can be difficult. Water corporations regularly experience unexplainable high-risk sewage inflow peaks which are generally thought to be from industrial waste sources;
- Real-time monitoring is currently impossible. Water corporations have trialled sensors for real-time monitoring of trade waste (to improve accountability of TWAs) and identify unexplained contamination. None have worked reliably enough to be adopted on a widespread basis;
- TWAs are primarily a tool of the economic regulatory framework, under the Essential Service Commission (ESC), rather than a tool for managing environmental risks; and
- Some water corporations are applying a risk-based framework to TWA and monitoring some new ANZECC parameters. However, a significant subset of TWAs do not cover any emerging contaminants, and they do not have expiry dates or triggers for review.
Proposed Regulation 63 (d), as drafted, lacks tiered, risk-based elements common to alternative authorised disposal pathways elsewhere in Regulation 63, thereby placing too much reliance on the potentially inadequate TWA regime. Furthermore, enforcement responsibility falls on the water corporation, with industrial waste emitters potentially incentivised to retain historic TWAs rather than update them in response to new risks.
Water corporations propose an amendment to 63(d) that would grant EPA powers to set general conditions for emerging contaminants in trade waste as their knowledge and technology improves over time. Rather than relying exclusively on TWA conditions under the purview of the ESC:
(d) in relation to trade waste, for discharge into the sewerage system of a water corporation in accordance with a trade waste agreement under the Water Act 1989 and/or in accordance with specifications acceptable to the Authority set out in a determination made under regulation 5; or
Promotion of the GED-compliant systems at the trade waste emitting premises and using targeted risk-based audits is well suited to the EPA’s new functions and powers to ensure reasonably practicable controls are adopted by trade waste emitters at source, in the possible absence of reasonably practicable controls at the wastewater treatment plant.
Onsite Domestic Wastewater Steering Committee
The 2018 Victorian Auditor General’s Office (VAGO) performance audit into managing the environmental impacts of domestic wastewater identified deficiencies in the regulatory framework, gaps in compliance and enforcement powers and a continued lack of clarity around roles and responsibilities. These result in environmental impacts from inadequate or poorly maintained onsite systems.
VicWater expects the GED and proposed regulations to address historical deficiencies in the compliance and enforcement powers. However, significant challenges remain to strengthen the overall regulatory framework, clarify roles and responsibilities and ensure adequate resourcing for compliance and enforcement activities.
VicWater is participating in the DELWP-led Onsite Waste Water Steering Committee along with water corporations, councils and the EPA to reform the overall regulatory framework and make best use of the new compliance and enforcement tools in the Environment Protection Amendment Act 2018 and proposed regulations.
Septic tank waste tracking
The 2018 VAGO audit specifically noted that a lack of data regarding maintenance and servicing inspections undermined efforts to effectively manage risks posed by poorly performing onsite systems.
Despite these challenges, the report noted improvement in the Mornington Peninsula Shire since the introduction of the Septic Track system. Mornington Peninsula Shire Council and South East Water implemented Septic Track in late 2016 to electronically collect and record monitoring and compliance on the council’s registered onsite systems. The system replaced paper reports and automatically tracked pump-outs by contractors and disposal at the wastewater treatment plant.
VicWater can report that despite its advantages, and endorsement in the VAGO audit, the Septic Track system has not been embraced by septic tank pump-out contractors and robust data on pump-outs is not being recorded. It is unclear why these contractors are not using Septic Track. However, the lack of use of this technology is potentially undermining risk-based compliance and enforcement actions by the council.
Water corporations propose that under s142 of the Environment Protection Amendment Act 2018 for reporting priority waste transactions, septic tank pump-outs are reportable. This change would enforce tracking either by Septic Track (if it can be made compliant with EPA’s requirements), or the EPA’s proposed tracking system. Mandated tracking will enhance risk-based and targeted compliance and enforcement actions by local government, support accountability under a future Obligation Order for onsite domestic wastewater management, as well as reduce the potential for unauthorised disposal of septic tank waste.
VicWater notes EPA advice on October 28 that sewerage networks will be exempt from development and operating licence requirements under proposed Regulation 42(2).
Grease trap waste
Water corporations supports the requirement that grease trap waste is reportable under of section 142 of the Environment Protection Amendment Act 2018.
Biosolids and recycled water operations on licenced sites and their surrounds
VicWater notes EPA advice on October 28 that the proposed Regulation 41 exemption from requiring a permit for biosolids and/or recycled water use applies “if a person holds a higher order permission” (a licence) which covers the ‘use’ activity. There remains a need to clarify if the ‘premises plan’, in which such ‘use’ activities are unusually detailed, is considered a part of the licence, for this purpose. If clear, our members would find this overlaying permission an efficient mechanism to fulfil their responsibilities.
Biosolids and recycled water EIPs
VicWater notes EPA advice on October 28 that most biosolids and recycled water ‘use’ will be covered by a higher order permission (the licence) held by the water corporation. Again, this would benefit our members assuming the higher order coverage is clear.
Emergency storage of non-asbestos waste and spoil
VicWater notes EPA advice on October 28th that the emergency storage of waste may be authorised under s157 of the Environment Protection Amendment Act 2018. Water corporations require such an exemption for temporary storage of wastes generated from emergency works, and collected during an incident clean-up (such as contaminated soils).
VicWater notes EPA advice on October 28 that discharge of waste to an aquifer would likely require an A18 ‘discharge of waste to aquifer’ permit under the proposed regulations, and that the Environment Reference Standards may be of relevance to entities that issue groundwater licences under section 76 of the Water Act 1989. There is a need to clarify the exact obligations and support the relevant water corporations to perform this role on a co-regulatory basis.
Wet weather discharge
VicWater notes EPA advice on October 28 that all current licence conditions will be reviewed over the coming months to establish whether different conditions will be required in the future and, if so, how they should be written to complement the new framework. For their effective preparations, our members would appreciate a timetable from the EPA outlining the forecasted review periods and milestones.
Environmental Reference Standards
VicWater notes EPA advice on October 28 that there are no compliant thresholds for the odour objective. Water corporations will, consistent with the GED, take all reasonably practicable steps to eliminate, and if it isn’t reasonably practicable to eliminate, then minimise so far as reasonably practicable, the risk of harm from odour, that arise from their activity.
Water corporations support the proposed 55db noise limit in the Environmental Reference Standards (ERS). VicWater notes EPA advice on October 28th that the 55 db night noise wouldn’t apply to emergency works occurring on public property such as a road or footpath, or emergency works on residential premises. However, the night limit does apply to CIT premises and any emergency works that occur on those premises.
Lake Wellington ERS
VicWater notes EPA advice on October 28 that the details captured in Schedule 4 of SEPP (Waters) will be saved in transitional regulations, for a period of 2 years. During this time, EPA will engage with appropriate stakeholders to discuss and determine the most appropriate treatment for these clauses.
VicWater notes EPA advice on October 28 that did not include advice on the following matters:
- Please confirm that according to the table in Schedule 5 non-hazardous biosolids are priority waste, but not reportable under s142 and s143;
- Some biosolids, e.g. T4C3 now appear to fall within the reportable priority waste classification. Please confirm that according to the table in Schedule 5, hazardous biosolids are priority waste, but not reportable under s142 and s143 as long as they meet the permit conditions;
- At what point does PFAS (or any other component) become the primary contaminant for the determination of the waste code?
- Do the requirements set out in the draft Regulations for biosolids only apply once the biosolids leaves the site (and is no longer covered by the higher order permission)?
- Please confirm that since biosolids now have a dedicated waste code, it appears that constituent contaminants would not need to be specified, as per ‘tannery waste’; and
- Please confirm that a higher order permission for biosolids processing at an A03 plant can cover sludge generated at a separate A03 plant and carted in.
Sundry waste topics
- Residual from scouring potable water pipes is currently disposed of in the stormwater network. Please confirm the status of this discharge under the draft Regulations. VicWater notes that an exemption for this activity is possible under s157 of the Environment Protection Amendment Act 2018.
- What are the transition arrangements for currently approved beneficial reuse products that are now classified wastes (e.g. composts)?
- How quickly does EPA need to be informed of reportable priority waste transactions?
- Irrigation runoff is included under the definition of wastewater. Who is required to apply for a permit for discharging this wastewater: the irrigator or the rural water corporation that operates the irrigation drainage networks? VicWater notes that an exemption for this activity is possible under s157 of the Environment Protection Amendment Act 2018.
VicWater looks forward to further discussions on these matters.
VicWater notes EPA advice on October 28th that EPA’s compliance and enforcement strategy, to be released prior to commencement of the Act, should provide general guidance on how EPA proposes to operationalise the contaminated land notification mechanism.
Notification of contamination at licensed sites
VicWater notes EPA advice on October 28th that there is no exemption from notification for licensed sites, even in such cases when contamination could be known to EPA through other mechanisms.
VicWater notes EPA advice on October 28th that proposed Regulations 8 through 13 provide an exhaustive set of thresholds and circumstances for prescribed notifiable contamination.
Sampling requirements to establish contamination levels
VicWater notes EPA advice on October 28th that National Environment Protection Measures (NEPM) for the Assessment of Contaminated Sites forms part of the current ‘state of knowledge’ for duty holders on assessing and managing contamination risks and will continue to provide relevant guidance on the appropriate sampling required to assess potentially contaminated land.
Water corporations are important beneficiaries of the improved protection of the environment and human health. The water Industry is unanimously supportive of the reforms which originated from the Independent Inquiry into the EPA, in particular, the Environment Protection Amendment Act 2018 Protection Act and the General Environmental Duty (GED) which is greatly expanding the reach of environment protection powers to tackle diffuse pollution.
Water corporations will be subject to provisions in the draft Regulations in their capacity as managers of external waste streams – not as waste generators per se. As such, the focus of this submission and the amendments to the proposed regulations that are suggested aim to maximise the opportunities to promote better environmental outcomes on a co-regulatory and shared basis, as well as making the water industry’s management of community and industrial waste streams as efficient and effective as possible.
Chief Executive Officer