Whether soil stockpiles can be used under DoW CoP is an issue that is frequently raised by users and regulators. Who decides the correct approach is sometimes difficult to determine, but it is easier if one always comes back to the “is it waste?” question and then thereafter what available routes can be followed.
Waste is something that a holder of a material discards, intends to discard or is required to discard. So, stockpiling materials should be looked at in that context.
Examples of Poor Practice
If a site is discarding materials from the outset, the materials are likely to be deemed waste. An example would be a project which plans to carry out excavations to create a basement for a new development. The site is tight for space and there has been no forward plan to find an option to reuse the material anywhere in the project timeframe. The holder just wants the material off-site after the initial excavation and stockpiling at the loading area. This is an indication it is being discarded, so this material is waste and must go, via an authorised waste carrier, to a permitted site. Alternatively, if it is only a small quantity and it meets the requirements it could go to a site with a registered exemption. This material / waste must be removed under the Duty of Care.
If there has been no plan in the project design stage to identify material which could be beneficially used elsewhere, and the material surplus to site requirements is temporarily stockpiled during works ready to be removed from site at the end of excavation works, then there is an apparent intention to discard and hence it is a waste.
The above two examples could be deemed poor practice in material management. The waste hierarchy has not been fully, or properly considered, and excavated material has been stockpiled with no effort to find an option to recover, or reuse the materials excavated. It is being discarded and sent off-site to get it out the way and the project is paying to have it removed.
If material is excavated and there are unexpected issues associated with it (i.e., it has unexpected contamination or poor geotechnical properties), and it is temporarily stockpiled, but the planning requirements or regulatory advice states it must be removed from site, then there is a requirement to remove the material and it is waste and should be treated as such and removed by a registered carrier to a permitted site. It is required to be discarded.
Examples of Good Practice
However, good project management and a genuine intention to have regard to the waste hierarchy from project outset can position the material in a different light. The key issue is “intention.”
A project demonstrating intention not to discard is likely to have several lines of evidence to support this claim. For example, at the design stage, a site excavated Materials Management Plan (MMP) would be in place. This would be informed by a good desk study, site sampling and risk assessment process. Prior to any excavation, the volume and type of materials to be excavated will be known. The site design strategy and MMP document will clearly state the intention to find a way to reuse or recover all the excavated materials.
In this case if material is stockpiled after excavation and stockpiles are managed in accordance with good site practice then this material can be held on site for up to 12 months. The material may be surplus to Site of Origin requirements, but there is not an intention to discard it, as clearly demonstrated in the MMP. A further line of evidence may be that the materials have been registered on the CL:AIRE Register of Materials. When a Receiver Site is identified for this material, it can be moved off-site to the nominated Receiver Site under DoW CoP. Alternative reuse options could also be as waste materials to an exempt site, providing it meets the exemption criteria, or a permitted recovery site.
Clear lines of evidence are required showing how much material will be excavated, what type of material it is, stockpile management so as not to cause any problems (runoff, dust, eyesore etc.) and where it is intended to go. A genuine attempt to identify potential Receiver Sites must be made before excavation and stockpiling. If Receiver Sites are not identified for all the material, this may not be a fundamental problem, providing all lines of evidence regarding intentions are present and efforts to find Receiver Sites can be clearly shown. The above may also be required under planning in a Construction Environment Management Plan (CEMP).
It is important to note that material stockpiled with an intention to find a Receiver Site for beneficial reuse in this way can only be stockpiled for up to 12 months, under the relevant exemption for storage of material at site of production. Storage for longer may require a waste storage permit, or at the very least formal confirmation from the regulator of an agreed extended period beyond 12 months. This will only be a limited extension, but the maximum for larger projects may be up to three years if the material is intended for reuse or recovery.
Any material stored for longer than 12 months in a stockpile, where there is no clear intention stated to reuse, is likely to be considered waste and must be removed from site under Duty of Care to a registered waste recovery or disposal site. This material is not to be accepted at a DoW CoP Receiver Site and QPs must not sign Declarations that include such material.
Stockpiles at Receiver Sites
The above considerations also apply to stockpiles at Receiver Sites. If material is imported under the DoW CoP and stockpiled, but not used within 12 months, or in a time period agreed with the regulator, it will be considered waste and any subsequent material reuse may require a waste permit for recovery or disposal, or else the material must be removed from site as waste.
The key issue is whether there is an intention to discard, either deliberately, or by default. For example, if a multiphase project has surplus soil arisings on phase 1 and they are stored with intention to be reused under phase 3, but after 12 months they have not been transferred or used, it can be considered abandoned and potentially an illegal waste deposit.
Potentially this material, if covered by a soil stockpile management strategy, may be stored for longer with agreement from the regulators, either on phase 1 or even phase 3, but there must be clear intention for reuse and the materials must be kept suitable for reuse by good stockpile management. Any potential for them to be deemed abandoned by regulators could result in material becoming waste which could result in penalties incurred for an illegal deposit of waste. Such deposits may also be subject to landfill tax penalties and charges.
Recommendations
Good document management is imperative, with high quality and full lines of evidence, relevant agreements with the regulators, and compliance with all good practice guidance and regulatory requirements. There must be ongoing oversight, along with good materials tracking systems.
Conversely, ad hoc material management, stockpiling with no clear intentions, last minute arrangements for material transport and poor attention to timelines and project management will restrict options for material reuse and disapply options like DoW CoP, with possible enforcement actions applied to abandoned or illegally deposited materials.
