Loss Prevention Alerts

Alert 26:  Remediation and the waste management regime What should be said to clients?

This loss prevention alert has been produced by the Loss Prevention Working Group (LPWG) of the AGS. It highlights issues that the LPWG considers may be of relevance to members. It is not intended to provide a definitive response to any issues and before taking action members should consider carefully whether they need to seek independent legal advice.

Despite government targets relating to redevelopment of brownfield sites, and recent tax incentives for Clients redeveloping brownfield sites, the waste management regulations still appear to represent a constraint on remediation works. Not only do they restrict handling of contaminated material from remediation works but the costs of compliance with the regulation have to be borne by the developer.

However, unless the Client wishes to risk prosecution by the Environment Agency, (EA), it is necessary to carry out all waste disposal activities within the Regulations, and specifically, how they are currently interpreted by the EA. Contractors and Consultants should be very wary of any pressure to avoid the regime.

This LPA sets out the current situation, as applied by the EA, to provide Clients sufficient information to make an informed decision as to how their developments may be affected by the regime. However, perhaps the key point to be raised by this LPA is that these issues must be recognised and discussed with the EA at an early stage to enable appropriate action to be taken.

The Issues

The key issues relate to the definition of waste, how it is applied, the implications of a 'waste classification, and how to minimise these, whilst remaining within the regulations.

Under Section 33 of the Environmental Protection Act 1990:

" A person shall not…treat, keep or dispose of controlled waste, or knowingly cause or knowingly permit controlled waste to be treated, kept or disposed of…in any land…except under an in accordance with a waste management licence".

For the purposes of interpreting this Clause, waste is essentially anything which the producer or person in possession of it either discards or intends to discard. The suggested test for this as defined in the Government's guidance note 11/94 is whether the material is to be treated as no longer part of the normal commercial cycle or chain of utilities. An intention to reuse material does not necessarily prevent it being classified as waste.

In terms of brownfield remediation the most typical scenarios where 'waste' may arise, according to EA interpretation, are as follows:

a) Contaminated Soils

These are considered waste as the soils are 'not discrete from the contaminants' which are considered by the EA as waste because they have been 'abandoned or control of them has been lost'.

b) Construction Arisings

As material is excavated to install foundations or other elements of a development, generally arisings are considered by the EA to be classified as waste.

c) Stockpiled Materials

Currently stockpiled material, which has been stored awaiting a future purpose, would under the Regulations be classified as waste, having fallen out of the chain of utility.

d) Geotechnical Treatments

This is a grey area, where there EA does not appear to have a consistent interpretation. However, there have been instances where ground improvement using cement or lime has been interpreted by the EA as a waste treatment.

The Dangers for AGS Members

Regardless of the EA's interpretation of the Regulations being questionable, it would be highly dangerous to ignore their assessment and make assumptions on requirements for a waste management licence.

It is worth noting that whilst the EA are committed to promoting brownfield development in general, the WML regulations will apply even if they act as a disincentive. Any advice given to Clients must therefore be within the framework of the legislation and it would be highly dangerous to advise on the need for a waste management licence (WML), without the benefit of prior discussions and agreement with the EA.

The danger relates to giving careless or negligent advice. This could result in the Client incurring losses in two ways.

In the event of work taking place on the advice that no WML is required, the EA may intervene by requiring an application to be made, so halting and delaying the works substantially, or even by prosecuting the developer. The contractor or consultant who gave the advice, may be criminally liable as an aider and abettor or counsellor and procurer of the offence committed by the developer.

If, based on professional advice, a WML is obtained but is subsequently found to be unnecessary, the developer would have incurred additional costs and possible economic loss due to blight, and may seek to recover such losses from the consultant or contractor advisor.

However, as professionals employed to advise our developer clients on pertinent issues, we cannot ignore the WML issues and should provide our Clients with the information to allow them to make informed decisions.

Options for dealing with Waste Management Issues

It has generally been the assumption that when dealing with remediation and redevelopment of brownfield sites, the development will involve activities interpreted by the EA as requiring a waste management licence. However, despite this worst case assumption, there are various ways in which an exemption may be obtained for many developments.

With regards as to the classification of soils as waste, the EA interpretation is generally reasonable for contaminated soils. However, there is scope for negotiation as to what constitutes 'contamination' with respect to disposal of soils. Current EA guidance on waste disposal classification is based primarily on ICRCL and GLC 'Kelly tables', but is deemed to be superseded by the risk based criteria derived from CLEA and 'waste acceptance criteria' implemented by the landfill directive. Therefore the concentrations of contamination which would comprise contaminated soil, can be derived specifically for each individual site.

It has to-date been assumed that re-use of 'contaminated soils' which have not required treatment or containment, may be eligible for a waste management licence exemption. This should not be assumed automatically without reference and confirmation by the EA. In this context it should be noted that the EA would consider the application of a clean cover to be waste containment. In this situation, any regrading of the underlying soils would require a WML. Any material comprising Special Waste WILL require a WML and this may easily apply to relatively low levels of some hydrocarbons. In addition, in assessing the eligibility of re-use of 'contaminated ' material (and non-contaminated 'waste' material) the volumes of material in question will be taken into account. If the material does not comply with exemption criteria, the EA may still allow a small amount of regarding and have intimated that the enforcement position of 1000m3 may be applied if the activity does not fall within applicable exemptions.

Contaminated materials identified for re-use with treatment, will generally require the treatment process to be licensed, usually through a mobile plant licence, and a WML or exemption will not normally be required. However this is process specific. The EA must be consulted over non-licensed processes to ensure compliance with the regulation.

If any material, including 'contaminated' soils or construction arisings, is intended for re-use on the site, say as part of a re-grading exercise or construction of landscaping , it may be prudent to clearly state this either in contract documents, method statements etc. This will indicate an intention to use the material and prevent it falling out of the 'chain of utility' and therefore becoming a 'waste'. This approach may also be valid for stockpiled material, which is to be removed or sold for re-use on other sites.

It is also noted that material removed off site to a suitable licenced facility in compliance with the Duty of Care Regulations does NOT require a waste management licence. However, the impacts of the implementation of the Landfill Directive, requiring contaminated soils to be pre-treated before disposal will involve adherence with the WML regulations.

Conclusions

Interpretation of the Regulations for particular sites will vary between EA offices and even individual officers. Therefore, the safest approach is to become familiar with the key requirements of the WML Regulations and with the Clients consent, open discussions with the EA as early as possible to negotiate the waste management licensing requirements on a site specific basis. This allows the EA to make an informed assessment, rather than a 'shotgun' last minute decision. In addition, there will be time to query and attenuate possible unreasonable licensing demands before they become formal licensing requirements.

This approach not only protects the advisors, but gives Clients the specific information they need to make commercial decisions with respect to the impacts of the WML Regulations on remediation and redevelopment schemes.

Date of Issue: 15 April 2003