Guidance on waste rules for excavated soils issued

The contaminated land industry body CLAIRE has developed a voluntary code of practice for the use of developers and their advisors on waste rules for soil excavated from construction or remediation sites. There have been few changes since it was issued for consultation in April (ENDS Report 399, p 42 ).

The code applies only in England and Wales, but is an attempt at self-regulation by the industry. It is supported by the Environment Agency, English Partnerships, the Environmental Industries Commission and other bodies.

The question of whether excavated soils are ‘waste’ has been debated for several years. Until now the Agency has adopted a strict interpretation of EU waste framework Directive rules, meaning excavated soil even from uncontaminated greenfield sites is considered waste and subject to environmental permitting where there is ‘an intention to discard’. This is a considerable hindrance to the reuse of soils on other development sites.

The code sets out a method of operation for site development starting with a remediation strategy or design statement.

It sets out three principle conditions that must be fulfilled if soils are not to be classified as waste:

• Soils must be "suitable for their intended use" without further treatment.
• Soils must have a guaranteed use. If they are stockpiled with little prospect of use they will be classified as waste.
• Materials should be used in the quantities required and no more. The use of excessive amounts will signal that the material is waste.

To demonstrate that the above conditions are met, developers must produce a Materials Management Plan covering the use of materials on the site. It should show materials will not cause damage to the environment or threaten human health and be based on a risk assessment underpinning the remediation strategy.

The code requires that the above plans be reviewed and a declaration signed by a "qualified person" - such as a holder of the specialist in land condition (SiLC) qualification - before excavation begins.

The Agency says in a position statement it intends to conduct random audits of a number of decisions made by qualified persons to ensure that human health and the environment are protected.²

Finally, developers must ensure that materials are treated and used as planned and record it in a verification report. Should this not be done, or if it transpires that the materials do present a risk to health or the environment, then the Agency may conclude the materials are waste and potentially require site remediation.

The code only applies to soils reused on the site where they have been excavated, or those sent to a "soil treatment hub" approved by the Agency and then reused within a defined "cluster". Clusters are groups of development projects using the same soil treatment centre. Although the concept is well-established, putting the idea into practice has proved problematical (ENDS Report 394, pp 14-15 ).

CLAIRE and the Agency are examining whether the code could be extended to cover the reuse of soils on other development sites outside clusters, which is likely to free up the market for soil treatment at conventional treatment centres (see p 22 ).