Assessment | Action | Escalation...

ENV

240.

0218

February 2018

Assessment | Action | Escalation ProcessSupporting a national strategy to manage environmental impacts from products

Draft for consultation

2 / Assessment | Action | Escalation Process

© Commonwealth of Australia, 2018.

Assessment | Action | Escalation Process Draft for consultation Supporting a national strategy to manage environmental impacts from products is licensed by the Commonwealth of Australia for use under a Creative Commons Attribution 4.0 International licence with the exception of the Coat of Arms of the Commonwealth of Australia, the logo of the agency responsible for publishing the report, content supplied by third parties, and any images depicting people. For licence conditions see: http://creativecommons.org/licenses/by/4.0/au/

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ContentsIntroduction 4

Assessment 6

Step 1 – Is there a product impact issue? 7

Step 2 – Characterise the issue & assess feasibility of action 9

Steps 3–4 – Prioritisation and agreement of the Work Plan 11

Action 12

Step 5 – Design the Approach 12

Steps 6 and 7 – Implement and Operate the chosen approach 14

Step 8 – Monitor and Review 14

Step 9a – Continue with chosen approach 14

Step 9b – Continue with modifications 14

Escalation 15

Priorities set under the Product Stewardship Act 2011 15


IntroductionThe Department of the Environment and Energy, in consultation with a working group representing the states, territories and local government is developing a set of principles and processes to guide strategic national prioritisation of action on product impact issues. The working principles are that Australian governments will:

• promote and support industry led action to minimise the negative impacts from products throughout their life cycle,

• work cooperatively and collaboratively with industry to ensure timely and consistent assessment of, and action on national product impact issues,

• support escalation of product stewardship action once in train.

The draft Assessment | Action | Escalation Process (the Process) outlines the step-by-step processes for assessing, managing and escalating national priority issues in line with these principles.

An overview of the Process is at Figure 1.

The structure of this document reflects the steps outlined in Figure 1, with further information provided for each step.

Steps 1 to Step 4 outline the Assessment Stage where initial analysis of product impact issues to determine the extent and severity of the issue, a recommendation is made, and Environment Ministers decide to include an issue as a priority, or not. These steps can be undertaken by any level of government, in cooperation across government, or in collaboration with industry, academia, and the public.

Recommendations for product impact issues to be addressed under the Work Plan will be put to Environment Ministers through the Senior Officials Group, subject to majority agreement from all jurisdictions.

The remaining steps cover the Action Stage where in-depth analysis is undertaken and the action to be implemented is designed. This could be voluntary, co-regulatory or regulatory action. The Action Stage also includes the development of timeframes

for delivering outcomes, key measures of success, the review process as well as the likely escalation process (should it be required following review). The Escalation Stage is then outlined for actions that are seen to not be delivering the intended outcomes, noting that escalation is not assumed for all priorities.

The roles of Environment Ministers and any party analysing a product impact issue for prioritisation are outlined throughout these guidelines.

Note – the Minister for the Environment and Energy has the authority to publish a yearly list of Commonwealth product waste issues for action under Section 108A of the Product Stewardship Act 2011. This process is separate to the prioritisation process outlined here. The priorities set by the Minister for the Environment and Energy will however also sit on the work plan. See page 16 for more information on the Minister’s list

The steps undertaken to define these priorities has therefore also been outlined, and the processes outlined in this document are also intended to guide that prioritisation process to ensure consistency.

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for delivering outcomes, key measures of success, the review process as well as the likely escalation process (should it be required following review). The Escalation Stage is then outlined for actions that are seen to not be delivering the intended outcomes, noting that escalation is not assumed for all priorities.

The roles of Environment Ministers and any party analysing a product impact issue for prioritisation are outlined throughout these guidelines.

Note – the Minister for the Environment and Energy has the authority to publish a yearly list of Commonwealth product waste issues for action under Section 108A of the Product Stewardship Act 2011. This process is separate to the prioritisation process outlined here. The priorities set by the Minister for the Environment and Energy will however also sit on the work plan. See page 16 for more information on the Minister’s list

The steps undertaken to define these priorities has therefore also been outlined, and the processes outlined in this document are also intended to guide that prioritisation process to ensure consistency.


AssessmentThe Assessment Stage of the Process is where a product impact issue is identified, characterised, considered by Environment Ministers for inclusion as a priority for management through the Work Plan. It also covers the assignment of roles and responsibilities if it is deemed a priority. This stage is broken up into four steps.

There are five core requirements that underpin Steps 1–4 of the Assessment stage and must be satisfied before an issue can be recommended to Environment Ministers for consideration. These steps and core requirements ensure the extent of the issue and the risks of not taking prioritised action under the PIMS Work Plan are identified and consistently assessed.

The core requirements are that:

1. The issue must be confirmed as a product impact issue.

a. The term ‘product’ covers all manufactured things used in households, commercial and industrial sectors. This includes the things used to build those households and commercial and industrial premises. Waste is any material, substance, or by-product that is discarded as no longer required and has negative social, economic and environmental outcomes.

b. It must be demonstrated that there is an issue with the impacts of the product, there is measurable failure to minimise the product impacts through industry action and there are significant risks to not taking action.

2. A jurisdiction must be willing to sponsor and lead the initial analysis of the suspected product impact issue. Jurisdictions may co-sponsor or lead.

a. Note – it is assumed that the sponsoring jurisdiction during the Assessment Stage will undertake the Action Stage, unless otherwise agreed.

3. The product impact issue or the action required to minimise it must be cross-jurisdictional.

a. That is, not just where the effects of the product impact are seen should be considered, but where they originate. Whether taking action on the issue will require cross-jurisdictional action or not taking action could have cross-jurisdictional or national consequences should also be considered.

4. The lead jurisdiction must prepare advice to Environment Ministers outlining the analysis and rationale for prioritising a product impact issue on the Work Plan. This must demonstrate a quantifiable benefit to taking action.

a. The initial analysis undertaken during this stage is not envisaged as a full costs and benefits analysis and will likely depend on existing information, given decisions will need to be made by Environment Ministers allocating resources for further in-depth analysis (e.g. full cost-benefit analysis).

b. The paper must outline potential options for action based on this initial analysis to inform allocation of resources (if prioritised).

5. The majority of jurisdictions must agree that the nature of the issue is of a high enough priority for recommendation to Environment Ministers for management through the Work plan.

a. Environment Ministers will consider inclusion of new priorities once a year.

b. Jurisdictions must agree to a maximum of 4–5 priorities to put to Environment Ministers on a yearly basis. This will ensure the PIMS Work Plan focuses only on the highest priority national issues. Priorities will be limited to 3–4 in a rolling two-year timeframe.

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Steps 1–2: Identification and characterisation of a product impact issue

Step 1 – Is there a product impact issue?

The first step in the Assessment Stage is that a product impact issue needs to be identified, brought to the attention of government (local, state/territory and/or Commonwealth) and confirmed as an issue that needs further characterisation. This means that the issue needs to be confirmed as one that can be minimised through product stewardship.

Issues caused by products can include environmental impacts and impacts on the health and safety of people. They may also include broader issues such as a lack of information about the product, or general awareness of the product and its impacts.

Identifying a product impact issue

Each jurisdiction will monitor product impact issues. These may be identified in several ways, including, but not limited to:

• Community concern raised through ministerial and other forms of correspondence, including campaigns, at local, state/territory and Commonwealth government levels

• Media reports

• Adverse events

• Government reporting such as State of the Environment and National Waste reports, and legislative and scheme reviews.

• Regular monitoring by Environment Protection Authorities or similar.

• Other forms of reporting, including inquiries, resulting from targeted monitoring. This can be done by local, state, territory governments, non-government organisations and/or industry.

The credibility of any data being used to justify an issue being recommended as a priority will need to be noted. This will need to be considered and factored in to ensure resources are appropriately assigned to further characterise the problem and progress it through the priority setting process. Credibility criteria may include:

– Published, peer-reviewed scientific/measured data from reputable organisation/s

– Information that can be otherwise reasonably verified. Examples may include a clear description of the issue; recorded images, known events; correlation with monitoring data and/or health reports; and consistency (over scale and time) in concerns raised.

Check point – If following this initial assessment one or more jurisdictions (state, territory and/or Commonwealth) considers that there is a product impact issue, this meets Core requirement 1. Further characterisation is to be undertaken at Step 2.

A sponsoring jurisdiction must be identified at this point. Jurisdictions may co-sponsor. This meets Core requirement 2.


Step 2 – Characterise the issue & assess feasibility of action

The second step in the Assessment Stage is to characterise the product impact issue and do an initial analysis of the feasibility of action by considering the costs and benefits. This step identifies if there is measurable failure to minimise the product impacts through industry action either early in the product life cycle, by building in mechanisms throughout the lifecycle, or at end-of-life.

The lead jurisdiction undertakes Step 2 collaboratively or in consultation with other jurisdictions and industry as appropriate.

2a Characterise the problem

Several aspects need to be taken into account when characterising a problem in order to satisfy Environment Ministers that due consideration has been given to the issue and recommend it as a priority issue under the Work Plan.

Note that:

• the categories below should be used as guidance for characterising the product impact issue.

• objective, rather than anecdotal evidence is to be provided wherever possible.

• that this may determine that action (or further action) is not (yet) required.

These aspects include:

Scale

• Local

• Regional

• In single state/territory

• Cross-jurisdictional

• National

Check point – If the issue is not at least cross-jurisdictional then it will generally not meet the core criteria for management under the Work Plan and should not be submitted to Environment Ministers for consideration. However as noted, where the product originates, or the action(s) required to minimise its impact may be cross-jurisdictional.

Further analysis (through assessing the following aspects) may help determine this.

Occurrence

• Already existing or emerging

• Transient

• Seasonal

• Ongoing

• High risk of continuing (short to long-term progression) or re-occurrence

Source

What is the root-cause of the negative social, economic and environmental impacts? Consider whether the product is:

• Designed and manufactured in single jurisdiction

• Designed and manufactured in/across multiple jurisdictions

• Imported. Where does import occur? How?

Complexity of supply chain

• Characteristics and complexity of the product (considering its different components)

• Characteristics and complexity of the supply chain

• What is the market stability of the product (for example, early in development and production a product may have low stability because of an unproven market, while a more mature product would likely have a more stable market).

• What is the rate of recovery of waste from the product?

• What is the free-rider percentage?

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Impact

• Is it hazardous? If so, how?

• General environmental (visibility, greenhouse gas, pollution, odour, dust, etc.)

• Resource impacts (water, sewage, etc.)

• Health – how many people does/could it affect in what way/s? (acute/chronic, minor/major)

• Impacts sensitive populations (e.g. elderly, children, those with pre-existing conditions etc.)

• Adverse lifestyle effects (e.g. impedes outdoor activities)

Severity and trajectory

• Concentration in directly impacted populations

• Steady

• Worsening (how quickly?)

Stakeholders

• Outline of the key affected stakeholders/stakeholder groups

Current management

Is there a currently known method for effective minimisation?

• If not, why?

• If so:

– What is the method?

– Is it currently implemented?

• If not, why?

– Effective or ineffective for current and expected future situation?

– If ineffective, why?

Risk of no action

• What are the likely impacts if no action (or no further action) is taken?

Other risks

• Political/reputational considerations

• Economic impacts

• Social/stakeholder concerns

• Technical limitations

• Legal considerations

Check point – If the issue is cross-jurisdictional in the way previously described, or national, this meets core requirement 3 and assessment can proceed.

2b Assess feasibility of action

To assess the feasibility of taking product stewardship action on a potential priority product impact issue, an initial costs and benefits analysis needs to be undertaken. As stated previously, this is not expected to be in-depth, but must provide enough analysis to aid in the Environment Minister’s consideration.

The following are elements of the issue that need to be assessed to confirm that the impact the product has can be reduced through product stewardship because:

• There is the potential to reduce or change the materials used in the products.

• The way the product is used can be changed to minimise its impacts.

• The recovery of resources (including materials and energy) from waste from the product can be improved.

Determine potential options to manage the issue

Once a waste stream from a product issue has been characterised, an appropriate Action to address the issue needs to be considered, taking into account the characteristics identified.

This can be in the form of voluntary, co-regulated or regulated product stewardship Action.

Considerations that may help inform potential options to manage the issue include:

• Is there already action underway on this issue?

– If so, is there a clear regulatory gap or failure?

• Who is most appropriate to sponsor and lead on the Action


– Note that it is assumed that the sponsoring jurisdiction during the Assessment Stage will undertake the action, unless otherwise agreed. A priority cannot be recommended to Environment Ministers without a sponsoring jurisdiction.

• Is a single environmental standard or other cross-jurisdictional measure required, for example, to achieve a consistent outcome or approach? Why?

• If cross-jurisdictional, will it impose unnecessary costs or obligations on jurisdictions where the issue is not currently a problem?

• Would there be more collective benefit in addressing one or more other product impact issues and would this be at a lower overall cost to implement?

• What is the level of preparedness of industry to act?

• What is the level of preparedness of government to act?

• What will be the cost to industry and governments to take action?

– What are the resourcing and other requirements to take action?

• What is the likely consumer willingness to pay for the action undertaken by industry and/or government?

– Are consumers asking for action or will they need to be convinced?

• Is there a market for the recovered resource?

• How will it facilitate knowledge/information/technical transfer requirements? If so, how?

• Are there international examples of action on a similar issue that can be drawn on?

• Are the products identified as being a risk internationally, for example under: the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, the Minamata Convention on Mercury, the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous

Chemicals and Pesticides in International Trade and the Stockholm Convention on Persistent Organic Pollutants.

Determine indicative timeframes for Action

Any potential Action options should also include the expected timeframes to:

Assess further

• This initial analysis stage may expose knowledge gaps that require more time and/or resources to investigate further.

Design final approach for Action

• This is where the in-depth analysis of relative costs and benefits of different types of action (voluntary, co-regulatory or regulatory) are considered, and then an approach is chosen and designed.

Implement

• This should consider the processes that need to be developed and put in place before Action can commence.

• This will be dependent on the type of approach chosen – voluntary, co-regulatory or regulatory.

• For voluntary schemes this may include the likely time needed to develop and implement specific guidelines for undertaking the action.

• For co-regulatory and regulatory schemes this should also consider likely timeframes to develop and make legislation.

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Steps 3–4 – Prioritisation and agreement of the Work Plan Steps 3–4 cover the decision on whether an issue is considered a priority, the assignment of roles and responsibilities to undertake Action, and final agreement of the Work Plan.

Step 3 – Determining priorities and assigning roles and responsibilities

Step 3 covers the processes that need to be completed to seek a decision from Environment Ministers on issues to be prioritised for management on the Work Plan.

Determining priorities

The process to seek a decision by Environment Ministers whether to prioritise an issue on the Work plan is:

1. Jurisdiction(s) prepare(s) a paper outlining the analysis undertaken in Steps 1–2

This meets core requirement 4.

2. Jurisdictions consult with other jurisdictions to seek support for prioritising the issue and recommending it as such to Environment Ministers. Comments from jurisdictions should be included with the paper.

3. Jurisdictions coordinate to ensure that no more than 4-5 issues are recommended to Environment Ministers on a yearly basis. Priorities will be limited to 3-4 in a rolling two-year timeframe.

This meets core requirement 5.

4. The Senior Officials Group endorses the paper and recommends it to Environment Ministers for consideration.

5. Environment Ministers make a decision on whether the issue is deemed a priority or not.

Assigning roles and responsibilities

Once a product impact issue has been deemed a priority, a sponsoring jurisdiction must be confirmed to undertake the Action Stage.

As stated previously, it is assumed that the sponsoring jurisdiction during the Assessment Stage will also undertake the Action Stage. This may not however always be the case, and/or undertaking the Action Stage may require more jurisdictions to participate.

Identifying who will undertake the investigative work to design an appropriate approach includes consideration of existing powers and responsibilities, as well as available resources that can be contributed to the issue.

Any jurisdiction/s can self-nominate to sponsor or co-sponsor an issue.

Step 4 – Agreement on the Work Plan

Following a decision by Environment Ministers on priorities and agreement on roles and responsibilities for every priority, agreement will be reached on the Work Plan.

This will include when the first report on each priority (outlining action undertaken under Step 5) is due to Environment Ministers.

A high level explanation of the decision on considered issues is to be conveyed through the Meeting of Environment Ministers agreed statement.

Check point – These three steps must be completed before proceeding to the next step.

This meets core requirements 4 and 5 of the Assessment Stage.


ActionThe Action stage encompasses the design of the product stewardship approach, the implementation and operation of the chosen approach, and the review of that approach at pre-determined intervals.

Taking Action on a priority product impact issue will be the responsibility of the sponsoring jurisdiction that is agreed during Step 4 of the Assessment Stage. This section provides guidance on the Action Stage.

There are 6 core requirements of the Action Stage that ensure there is timely, measurable progress on minimising the product impact issue. These are that:

1. The sponsoring jurisdiction will manage the Action Stage and ensure all requirements are met.

2. The responsible party will establish a working group for the management of the issue and report on progress.

a. The working group should be well-represented from various parts of the supply chain relevant to the priority issue.

3. The action design is fit-for-purpose and cost-effective.

4. Timeframes and clear measures of success are established.

a. Note - a two-year work plan will be assumed for each priority issue unless otherwise agreed.

5. Where appropriate (for example where a product impact issue is particularly complex) Environment Ministers must agree to the final Action design before implementation commences.

6. There is regular review and reporting to Environment Ministers on progress.

a. Note – this can happen throughout the timeframe for delivery and must happen after two years.

Step 5 – Design the Approach

The design of the approach to be implemented will be undertaken by the sponsoring jurisdiction and the working group established for each priority product impact issue.

The design should encompass the analysis undertaken during the Assessment Stage and build on it.

The sponsoring jurisdiction will report back to Environment Ministers and seek agreement to the Action designed during Step 5 at a pre-determined time agreed to in Step 4 of the Assessment Stage.

Which product stewardship approach?

This is the type of product stewardship action that will be implemented. It can range from voluntary through to mandatory through co-regulatory or regulatory schemes.

The approach should be chosen based on an in depth analysis of the costs and benefits of action and be fit-for-purpose for managing that product impact issue.

The analysis undertaken during the Assessment Stage should be used here and built on or changed as appropriate.

Establish timeframe for delivery

As a baseline, a two-year work plan will be assumed for each priority issue. The work may be escalated at each meeting within this two-year work plan, and must be formally reviewed after two years. A shorter or longer time-frame can be agreed to for a priority issue on a case-by-case basis.

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Establish the evaluation criteria

The sponsoring jurisdiction and working group must establish evaluation criteria. The evaluation criteria will be used to review and evaluate the success of the Action. These should answer the following questions:

• What are the objectives of the scheme?

– These should be clear and concise and easily answer the questions ‘so what?’, ‘by when?’ and ‘how?’

• What is the baseline?

– This should be detailed information on the product impacts before Action is implemented. This can include qualitative and quantitative data.

• What are the measures of success?

– These should be established in relation to the baseline and agreed timeframes for reporting. Separate measures of success can be established for Stage 6 Implement and Stage 7 Operate.

Seeking agreement from Environment Ministers on

Action design

The sponsoring jurisdiction will report back to Environment Ministers and seek agreement to the Action design at a pre-determined time agreed to in Step 4 of the Assessment Stage.

Note that the analysis undertaken during the Action design stage may result in the decision to not proceed with action. This may happen for several reasons, including:

• The issue has been resolved in the meantime or is expected to be resolved through market forces (or other) without further action

• Further analysis shows there is too high a cost to take action

• There is not enough resourcing

Check point – These three steps must be completed before proceeding to Step 6 – Implement.

This meets core requirements 1–4 of the Action Stage.


Steps 6 and 7 – Implement and Operate the chosen approach

The sponsoring jurisdiction and working group will implement and operate the chosen approach as agreed during the Approach Design stage.

Step 8 – Monitor and Review

The sponsoring jurisdiction and working group will undertake review and evaluation of the Action at regular intervals pre-determined during the Approach design stage.

The review will be undertaken against the measures of success developed during the Approach Design stage.

The working group will report to Environment Ministers on the findings of these reviews at regular, pre-determined intervals agreed during the Approach Design stage.

Step 9a – Continue with chosen approach

If the review of the implemented action shows that it is delivering in line with the intended outcomes, then the sponsoring jurisdiction(s) should continue with the action.

Step 9b – Continue with modifications

If the review of the implemented action shows that it is largely delivering in line with the intended outcomes but some modifications would be beneficial, then the sponsoring jurisdiction(s) must undertake design work on the modifications.

This is unlikely to require further review by Environment Ministers but may be put to the next meeting if deemed necessary.

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Escalation10 – Escalation

Escalation is not an assumed step for every action. Escalation means that the action has not been completed, has not been effective in minimising the impact of the product in line with the measures of success, or has resulted in perverse outcomes. This will be determined following a formal review of the Action stage at pre-determined times.

As noted previously, the specific process to determine this will be developed by the working group as part of the design process. They will also develop information on the feasibility and benefits of escalation for consideration by Environment Ministers.

This should include the environmental and socio-economic impacts, complexity of the waste product’s life cycle, the level of preparedness of industry to act and the cost of either modifying the approach or increasing regulation.

The form that escalation takes will be dependent on the design of the Action. That is, whether it is voluntary, co-regulatory or regulatory. The assumption in escalation is that the requirements on those covered by the Action will increase.

If it is agreed that escalation is needed and appropriate, the process will begin back at Design within the Action Stage.

Priorities set under the product stewardship act 2011

The Minister for the Environment and Energy has the authority to set yearly product impact issues for priority action in accordance with Section 108A of the Product Stewardship Act 2011. These will include only issues that the Commonwealth reasonably expects will need some form of regulatory intervention under the Product Stewardship Act 2011.

They will be separate to those determined through the Assessment | Action | Escalation Process, however the same principles as those outlined in this Process will guide their prioritisation.

These priorities will also be listed on the Work Plan.

The general administrative process for determining these priorities is outlined here for transparency and clarity around how it will feed into the Work Plan.


Process for the minister for the environment and energy yearly priority setting process under the Product Stewardship Act 2011

1. By the end of September each year the Department of the Environment and Energy will publish a draft priority list for the following year for consultation to State & Territory governments, local government, industry organisations and the general public. Submissions will be due by the end of December each year.

1.1. The Department will provide guidance on how submissions should be made.

2. The Department of Environment and Energy will consult on the submissions and draft priorities as appropriate.

3. By the end of each financial year, the Minister for the Environment and Energy will publish the priority products for the next financial year.

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