There have been a number of incidences of the Environment Agency (EA) objecting to the use of the ‘Definition of Waste: Development Industry Code of Practice (DoWCoP) published by Contaminated Land: Applications in Real Environments (CL:AIRE), V2, 2011, for re-use of soil on developments on both permitted and un-permitted landfills. There has also been inconsistency in their interpretation of the Waste Regulations in relation to applying DoWCoP on such sites.  Whilst it may be possible in specific cases to negotiate a solution with the EA to re-use soils under DoWCoP on such sites, in general terms, this apparent change in EA policy effectively removes the option for re-use of soils on such sites without implementing an Environmental Permit. This has implications on sustainability, costs, programme, and ultimately viability of development projects on landfill.

This situation prompted a letter from the Specialist in Land Condition Professional & Technical Panel, (SiLC PTP) to Department of  Environment, Food & Rural Affairs (DEFRA)/EA, The Ministry of Housing, Communities and Local Government (MHLGC) and Department for Business, Energy and Industrial Strategy (DBEIS). This requested:

EITHER: Amend the guidance within the DoWCoP, to include the re-use of site won materials from within historic landfills without the need for Environmental Permitting;

OR: Produce new guidance which streamlines the waste recovery and surrender process for the re-use of materials from within historic landfills.

Responses have been received from the EA and DEFRA which clearly indicate that the EA and DEFRA currently consider re-use of materials on landfill sites falls outside the scope of DoWCoP.  It is also noted that the EA is undertaking a review of DoWCoP as they now ‘have concerns that elements of the framework are not legally robust’. In terms of alternative approaches, the EA is producing internal guidance on permitting options to ensure consistency in EA opinion.

This current interpretation appears to represent a volte-face, given that the original application of DoWCoP was clearly intended to include materials contained in/derived from historical landfill sites, as evidenced by the published CL:AIRE case studies.

However, on the basis of recent correspondence, the AGS recommends that members advising clients with respect to redevelopment of land containing historical landfills take account of the current EA Regulatory opinion regarding DoWCoP to avoid the risk of involvement in material handling which could potentially be interpreted as being illegal waste activities.

Article provided by Jo Strange, Technical Director at CGL