The CL:AIRE (Contaminated Land: Applications in Real Environments) Development Industry Code of Practice version 2, enables the on site re-use of materials such as soil, as an alternative to landfill. If dealt with according to the code, these materials need not be classified as waste, so will not require an environmental permit, nor an official exemption from a permit. The new revision of the code allows clean, natural soil and mineral materials to be transferred between sites. In addition, it also allows for the treatment of soils at a fixed soil treatment facility (STF), either on site or at a so-called ‘hub’.
Overall, the effect of the new regulations is to increase the scope of the Code of Practice, so more activities can be carried out without the expense and delay of obtaining an environmental permit or an exemption from the Environment Agency. Developers will benefit by avoiding delay and administrative costs, but they must ensure that they carefully adhere to the Code.
The Code of Practice requires that an operator produces a Materials Management Plan (MMP). The MMP outlines the objectives of the work to be carried out and must be produced before any excavation begins. It must detail all the material that is going to be used, giving both a description and the quantities involved. Their transfer, storage, procedures for their tracking, and final use must be detailed. Risk assessments are required for the use of the materials, considering any possible risks to human health or the environment. The materials must be shown to be suitable for use, without further treatment. For example, the presence of pollutants, or invasive species such as Japanese Knotweed in a soil would render it unsuitable, and it would then have to be classified as waste. The materials must also be used in the quantities required for that particular use, and no more, otherwise they would count as waste. The plan must also give certain, rather than probable, uses and quantities for the materials involved. It is not permitted to stockpile material and merely state that it ‘likely’ to be used in a particular manner. The revised guidance mandates the use of CL:AIRE’s templates for MMPs; these are available on the CL:AIRE website.
The regulations recognize that deviations from the MMP may occur in practice. Some materials may fail to meet the required specifications, and may have to undergo further treatment or be reclassified as waste. Unexpected delays may lead to unplanned stockpiling of materials. Any deviations must be properly documented.
A completed MMP must be signed off by a suitable independent ‘Qualified Person’, who is responsible for assessing that the document is both complete and appropriate for the envisaged work. In this context ‘independent’ means not being directly involved with the management of the project, but the Qualified Person can be employed by a party to the development, such as a developer, contractor or landlord, or may be an external consultant. Provided that they are satisfied that the MMP addresses all the relevant issues, the Qualified Person sends a declaration to the Environment Agency that the site is being developed according to the Code of Practice. The implementation of the MMP is the responsibility of the developer, not the Qualified Person.
A Qualified Person must have chartered status with an appropriate professional institute. They should have relevant qualifications, at least five years relevant experience and have attended at least one day of training in the role of a Qualified Person. They are expected to regularly update their knowledge of waste and contaminated land regulations and good practice, and must be registered with CL:AIRE as a Qualified Person.
A number of nearby sites in which similar activity is occurring can be designated as a cluster by a developer. Rather than having separate decontamination / treatment facilities, they can share such a facility, located at a single site, known as the hub site. An Environmental Permit, or an official exemption from such a permit, would normally be required for the hub site, but would not normally be needed for the other sites within the cluster, which may be sending and / or receiving materials from the hub site.
‘Treatment’ refers to crushing and screening, or remediation, such as bioremediation. Stabilisation of soils with lime or cement does not count as ‘treatment’ and does not require a permit; neither do compaction, piling or soil reinforcement.
It is important a receiver site does not become more hazardous to health as a result of receiving treated materials. This is considered a ‘sham recovery’, and is not permitted under the Code of Practice.
Once work is finished, a verification report needs to be produced. This document should contain site plans and a description of the project. It should also demonstrate that the MMP has been followed (subject to any documented deviations). The tracking results for the materials used should be included, so that there is a complete audit trail. Thus, it should be possible to determine exactly which materials ended up where.
The Qualified Person who signed off the MMP does not have to be involved with the verification report; however, it may be useful for a developer to have them prepare or check the report, since they will be familiar with the project.
One of the major changes in the revised Code of Conduct are the provisions allowing the transfer of clean, natural soil and mineral materials between different sites. Appendix 2 of the Code of Conduct details what materials come under this heading, including natural soil, sub-soil, underlying mineral material and various related classes of material. These materials must come from either greenfield sites or brownfield sites where the soils have been extensively characterised and shown to be clean. It is important to note the word ‘extensively’ here, which would normally mean a variety of representative samples being taken from across a site. Manufactured soils are not included, and the Code of Conduct cannot be used with respect of their transfer from one site to another.
On some sites ‘natural’ contamination of soils may occur, due to the underlying geology. These soils may still be transferable, provided that the initial contaminant levels at the receiving site are comparable or greater than the levels at the donor site.
CL:AIRE website, ‘Version 2 of the Definition of Waste: Development Industry Code of Practice Released’, (2011). http://www.claire.co.uk/index.php?option=com_content&view=article&id=444:version-2-of-the-definition-of-waste-development-industry-code-of-practice-released&catid=954&Itemid=93
CL:AIRE website, ‘Definition of Waste. Development Industry Code of Practice’ http://www.claire.co.uk/index.php?option=com_phocadownload&view=file&id=212:initiatives&Itemid=230
MJCA website, ‘Definition of Waste: Version 2’, Clean Up, Contaminated Land News, (Feb. 2011). http://www.mjca.co.uk/files/Lou/wg18203%20newsletter%20Q1%202011.pdf
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