Duty of care and Earthworks projects

Earthworks operations can be extremely challenging when attempting to understand what is required to ensure legal compliance and protection of the environment and human health. In our latest blog, Nikki Maley explores how the regulatory mechanisms relating to waste should be applied to earthworks projects across a variety of scenarios.

An important aspect of ensuring accordance with the regulations as well as preventing timely delays and elevated costs is forward-thinking and planning at the earliest stages. It is important to decide whether importing, using, or exporting materials on a construction site is a waste activity or not and what will be required to ensure legal compliance whilst minimising the regulatory burden.

An important distinction that should be made initially is whether ‘waste’ materials are to be used or generated.

What is the definition of waste?

Material is simply considered ‘waste’ when the producer or holder discards it, intends to discard it, or is required to discard it. ‘Discarding’ also covers activities and operations such as recycling and recovery operations, which put waste back to good use.

Firstly, it is important to assess whether the site area is on naturally occurring uncontaminated ground and whether the materials you are importing to the site are considered products. The Waste Framework Directive (Article 2) describes the following important exclusion from waste regulations: uncontaminated soil and other naturally occurring material excavated during construction activities, where the material will be used for construction in its natural state on the site from which it was excavated. The holder of the material must be able to demonstrate that the material will actually be used and that the use is not just a probability, but a certainty.

You may also be importing construction materials to sites that are purchased products or virgin soils, clays, and aggregates from a quarry, for example, these would not be determined as waste, therefore waste regulations would not apply. Importing contaminated materials or clean soils/clays but from a different development site is, however, likely to be subject to waste permitting/exemptions or Contaminated Land: Applications in Real Environments (CL:AIRE) Definition of Waste: Code of Practice (CoP).

Duty of care legislation

If you have ascertained that you are dealing with waste, then the duty of care legislation comes into play, which makes provision for the safe management of waste to protect human health and the environment. This Code applies if you import, produce, handle, retain, treat, or dispose of certain wastes in England or Wales. Failure to comply with the duty of care requirements is a criminal offence and could lead to prosecution.

Therefore, if you are working with made ground, suspected contamination or are importing/reusing waste materials, then you may want to consider these key questions to determine the most appropriate regulatory regime:

  • What materials are to be used, i.e., contaminated soils, aggregates?
  • Where will the materials be reused, i.e.: agricultural land, near residential properties?
  • What are the quantities of materials to be used and is treatment required?

The Permitting/CoP options that may be available include the following or a combination thereof: bespoke environmental permits, standard rule permits, waste exemptions, regulatory position statements (RPS), CoP.

An appropriate site investigation analysis regime may be required and designed for the specific Permitting/CoP as required and ideally undertaken ahead of time. The analysis can be assessed, and the appropriate regime then implemented. Analysis test suites may vary depending on the type of Permitting/CoP that may be required.

Where the Waste Framework Directive exclusion doesn’t apply and as an alternative to environmental permits the CoP may be an appropriate alternative. The CoP provides a process which enables the reuse of excavated materials on-site or their movement between sites. A remediation strategy or design statement with accompanying materials management plan will need to be produced and signed off by a registered Qualified Person (QP) for validation and a verification report completed. The QP will issue a declaration which may result in an audit by the Environment Agency. If problems are found at any site a risk-based decision will be taken as to whether to retrospectively enforce the requirements for an environmental permit.

Want to know more?

Contact Nikki Maley in our Contaminated Land team for more information about site investigations and Permitting/CoP regimes that might apply to your sites.

Visit our webpage to find out more about our Environmental services.

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