Seeing a C:LAIRE way to a definition of waste?

CL:AIRE (Contaminated Land: Applications in Real Environments) has recently come a step closer to finalising its voluntary code of practice on the definition of waste. CL:AIRE – a not-for-profit organisation set up to encourage the redevelopment of contaminated land in the UK – has worked with industry and the Environment Agency (EA) in preparing the code, aimed at those involved in the development of land.

The code is intended to provide best practice guidance for developers when assessing if material is properly classified as waste, and if treated waste can cease to be waste for a particular use. It will apply to both uncontaminated and contaminated material, arising from remediation, development or redevelopment.

It will also apply to development outside of the normal planning regime, such as remediation work arising from a spillage of pollutants on an industrial site. However, the code will not apply in all situations and for all materials.

For example, it will not apply to excavated infrastructure material, such as pipework and storage tanks, and unexcavated wastes subject to in-situ treatments. Its aim is to build upon EA guidance The definition of waste: developing greenfield and brownfield sites, published in 2006.

The main changes to this guidance are:

• all remediation works are included in the code, not just those covered by the planning system
• the code allows for the development of cluster projects, where waste from a number of linked sites is taken away and treated at one hub
• the code aims to encourage a different relationship between the EA and the construction industry. It is intended that the industry become more self-regulating, and responsibility for the production and updating of the code will fall mainly on the construction industry.

Audit trail
The code provides for an auditable system to demonstrate compliance on a site-by-site basis. Although it will be voluntary, it will be applied by the EA to determine whether or not a material on a site is to be considered waste. There are three principles that are usually considered when deciding whether a material is waste:

• suitability for use, without any further treatment – for example, this would include direct use of material on site for regrading
• certainty of use – the developer must be able to show that the material will actually be used and that this is a certainty, not a probability
• quantity – only the quantity necessary for specified works should be used.

A developer can show that these three principles have been applied by demonstrating that the good practice procedures set out in the code have been followed. If the code is not followed and a material is deemed to be waste, waste legislation will apply. For example, contractors may need to obtain an environmental permit or register an exemption with the EA.

So what does the code involve? The draft states that a materials management plan (MMP) should be produced – this will set out a description of the materials and their quantities, as well as where the materials are stored and their final destination. Contingency plans should be in place in case of surplus materials, extended treatment times or project programme slippage.

A qualified person will oversee the plan and sign a declaration stating that appropriate lines of evidence show what materials have been used and how. This person must have the knowledge and professional standing to review and potentially challenge these lines of evidence.

Declaring compliance

The declaration will state that the MMP with all referenced documents has been produced, that the MMP meets the requirements of the code, and that a verification report meeting the requirements of the code will be produced on completion of the work. It should also contain an acknowledgement that deviation from the code could result in material being considered to be waste and therefore subject to waste regulation.

Any deviations from the original MMP should be recorded in the verification report. If the changes to the work are so significant that the original MMP is no longer valid, then a new MMP will have to be produced. The verification report acts as the final stage in the audit trail to demonstrate that materials and wastes have gone to the correct destination. To meet the requirements of the code, the report must contain all of the information specified by the code.

This includes: details of the experience of the person preparing the report; a description of the project; treatment records; signed delivery tickets (or references to their location); reference to the MMP, including details of any alterations made and why. The verification report should link back to objectives included in the original design statement relating to the reuse of materials and state whether they have been met.

Simon Read is a solicitor and Samantha Routley is a trainee solicitor in the property team at Pinsent Masons