No. Individuals will, as of January 2013 be expected to attend the one day training course again. This is required due to the amount of time which has passed since the versions changed.

1. At what point in the process should these discussions take place?
   At project planning stage.
2. Who is the point of contact?
   Enquires should be directed to the local Environment Agency office in the first instance. Where a Cluster project straddles Environment Agency area boundaries then the area where the Hub site is located should be contacted. Assistance will be given by NTS – Geoscience team if required by the local team
3. What information needs to be submitted to get this agreement?
   A Material Management Plan covering the sites concerned which contain the lines of evidence such as Hub site permit, contractual interrelationships and responsibilities, mass balance calculations etc. (also see paragraph A3.14 - DoWCoP Version 2)

Given that there is no suspicion of contamination there should be no need to consult. The Qualified Persons should satisfy themselves prior to signing the Declaration that there is evidence to support this e.g. Desk Top Study.

It will be good practice for the Qualified Person to include a clear request to see all relevant documents and to record those documents provided to them that formed the basis for the signed Declaration. It would be prudent to have a “full disclosure” clause in any contractual agreement between the Qualified Person and the person commissioning the works.

Under Route B – Direct Transfer – would there now be a need to consult?

Liaison with regulatory authorities regarding any development should continue as normal (e.g. discussions with local planning authority etc.) however there is no need to specifically consult the Environment Agency / Local Authority about remediation objectives or suitability of materials if such materials fit the description set out in Appendix 2 of the DoWCoP relating to Direct Transfer.

The purpose of this requirement is to avoid the application of the DoWCoP in situations where there is already an on-going dispute regarding the proposals at the site, for example where the remediation proposals do not satisfy the requirements of the regulator(s). The person commissioning the Qualified Person needs to provide evidence so that the Qualified Person can be confident in signing the Declaration. This can take the following forms:

Route A – where contamination is present or suspected:

• Actual correspondence (e.g. letters, e-mails, minutes of a meeting etc…) clearing stating this.
• Correspondence showing that the regulator has been approached but has declined to comment in detail on the proposal or has provided generic advice only.
• Correspondence showing that a real attempt has been made to engage with the regulator but that no response has been received (a minimum 21 day period should have elapsed before this could be demonstrated).
• The planning permission provides a clear link to the approved Remediation Strategy (where planning is applicable).

Route B –contamination not suspected:

• Actual correspondence (e.g. letters, e-mails, minutes of a meeting etc…) clearing stating this.
• Correspondence showing that the regulator has been approached but has declined to comment in detail on the proposal or has provided generic advice only.
• Correspondence showing that a real attempt has been made to engage with the regulator but that no response has been received (a minimum 21 day period should have elapsed before this could be demonstrated).
• Desk Top Study clearly indicates that no contamination is suspected, hence no need for consultation (see FAQ 9a above) and therefore it is reasonable to conclude that there is no objection in relation to the use of the materials in accordance with the Material Management Plan.
• The planning permission provides a clear link to how the materials are to be dealt with (where planning is applicable).
• The Design Statement clearly sets out how the materials are to be dealt with and the Statement has been agreed e.g. correspondence, minutes or there is a clear link from a planning permission (where planning is applicable).
• There is some confusion over the subject of “agreement” and reference to the “no objections” statement in the Declaration. It is the Declaration wording that is most important. The reference to “no objections” is relevant to objections to waste management issues and the detail of the DoWCoP documentation – rather than objections to other aspects of a planning submission e.g. flooding.

Reviewing in this context means making sure that all documents are there and that e.g. risk assessment conclusions align with specification and the Remediation Strategy. Checking means working through the risk assessment, for example, to check that conclusions are right – this is deliberately not required in the DoWCoP as the Qualified Person would be straying into territory of others. The Steering Group did not want to have work paid for twice and did not want confusion in relation to roles and responsibilities. It was a deliberate decision to limit the role of the Qualified Person and hence liabilities remain as they were before the introduction of the DoWCoP.

Yes. The role of the Qualified Person is deliberately limited to that set out in the DoWCoP. If the Qualified Person was to come across any fundamental error in any of the documentation (this is not just restricted to the Risk Assessment) then it is expected they would raise the issue with the person who commissioned them as a Qualified Person. However that would be done outside of the requirements of acting as a Qualified Person.

The expectation is that the person commissioning the Qualified Person should provide a summary which only details the parts relevant to the DoWCoP. It would be prudent for the Qualified Person to provide a pro-forma / questionnaire to the employer setting out what aspects need to be presented e.g. roles and responsibilities of the various parties relating to the reuse and treatment of excavated materials, contingency arrangements etc...

This will depend on the complexity of the project, how the information is to be presented and the market rate of the individual Qualified Person.

Chartered status is required. Experience and chartered status are tackling two different aspects. Chartered status supports the statements made in the DoWCoP relating to self-regulation and a high level of professional integrity. That is not to say that the criteria may not change in the future following a sufficient period of the DoWCoP being used.

Note that in terms of experience Qualified Persons should have a track record in site investigation / remediation and waste management issues.

Yes provided that they attended a recognised training course, and meet the other requirements, such as registration set out in Appendix 6 of the DoWCoP.

There should be no possibility of Qualified Persons checking their own work. As such, it is considered that any direct involvement in the initial stages of the project, or its establishment, will exclude someone from acting in the Qualified Person role on that project.

Once the Declaration is completed, signed and submitted, the Qualified Person role is finished and that person could go on to take a direct role in the management and execution of the project. Note, however, that in a Cluster project, there may be a number of Declarations to be completed and also the possibility of adding to that number if further sites join the Cluster. If the Qualified Person has become involved in the management and execution of the Cluster project having completed the initial Declaration(s) then a new Qualified Person will be required to deal with such additions.

No. The system has been established for those who intend to operate under the DoWCoP and recover excavated materials.

All Declarations are added to CL:AIRE Declaration management system. Submissions are checked for mistakes or missing entries. Once all required information is included, CL:AIRE issue a Declaration receipt to the Qualified Person. This carries a copy of the submitted information and is copied in to either the Environment Agency or Natural Resources Wales. The regulators add the information to their respective systems which informs local area teams. 

No, neither required nor desirable. The Environment Agency will disseminate and manage decisions regarding audits etc. from the centre.

CL:AIRE is the recognised Registration Body. Details of those requesting to be registered as a Qualified Person should complete the Qualified Person Declaration and submit it to CL:AIRE who will administer applications of those wanting to become a Qualified Person.

There is no requirement for the Qualified Person to be further involved with the project once the Declaration is submitted. There is no mechanism for retracting a Declaration within the DoWCoP, even when there is a material change to the project.

It is important that people involved with the excavation and reuse of materials understand the requirements of the DoWCoP e.g. they would be responsible for amending the Materials Management Plan and recording what actually happened to that material in the Verification Report.

No – liabilities remain as they currently are without the use of the DoWCoP.

The Qualified Person is signing the Declaration confirming everything is in place. The actual use of materials outside of the agreed specification would occur after the Qualified Person’s involvement.

If a Qualified Person is found to have fraudulently completed a DoWCoP Declaration then their registration will be reviewed.

The Environment Agency has revised their position and an acknowledgement will be sent after submission of the Declaration.

The Qualified Person should keep a record of all of the documents that were provided to them for review.

5 years.

Yes. Provided that it was strictly review, with no detailed involvement. Independence from the running of the project would need to be clearly demonstrated.

As of October 2016, QPs have been asked to:

1. Enquire whether the project has been the subject of an application for a deposit for recovery permit and if so whether that application (or preceding waste recovery plan proposal) was refused.
2. Establish and record the contractual relationship in place between the supplier and recipient of soil materials.
3. This requirement arrives from the outcomes of the Tarmac Aggregates Ltd v The Secretary of State for Env. Food & Rural Affairs & Anor (2015). The Court of Appeal found against the EA in its refusal to grant a Standard Rules Permit for recovery. The outcome was based on the fact the works would have occurred even if use of non-waste materials were required.

There was discussion during the case of the Wallasea Island project which was granted a recovery permit, despite the fact it could not prove the same e.g. the project would not have been feasible without a recovery permit. This case suggests the EA may have erred in granting the recovery permit to Wallasea Island, in which case it would be considered a waste disposal operation.

The DoW CoP specifically precludes its use on disposal sites in para 1.15

It follows that a projects viability without reuse of waste materials in place of primary materials becomes critical and precedes any attempt to define materials as a non-waste e.g. applying the DoW CoP.

Where a project has been refused a recovery permit and/or the recipient of the soil is being paid to accept it, then project teams should also seek further advice from the EA / NRW. Project teams are advised consider how they can summarise and prove a projects viability at the earliest possible stage to support the Qualified Person review. This might be most easily achieved by showing that planning decisions prove the need for the materials and that the project would be financially viable if primary materials had to be used to source the required volumes.

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