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When is a Soil a Waste and When is it a Product?

As most people working in the development industry will be aware, significant uncertainty exists in relation to the management and re-use of fill materials in the development and infrastructure industries following the Eclipse Resources Case.

Aurora Environmental hosted a forum on this issue recently, which highlighted approaches which could minimise, but not eliminate the risks faced by the development industry.

Brad Dermody and Pamela Lee foreshadowed the release of a Fact Sheet by the Department of Water and Environmental regulation (DWER) which was intended to clarify the situation for decision makers.  This fact sheet has now been released and is available here: (DWER Fact Sheet ).

Aurora Environmental are of the view that it provides a useful and factual statement of the current situation faced by the industry.  More importantly, it confirms comments made by DWER staff in various fora and correspondence, that the act of a third party paying for a fill material or soil is a significant consideration in determining whether the material can be regarded as a waste or a product.

The fact sheet also introduces the concept of ‘substantial transformation’ of a waste material and how such a transformation is required in order to transform waste into a product.  This concept is clarified in the document by means of examples and provides further clarity around recycling of construction and demolition waste at licensed premises in order to produce products for re-sale.

Aurora Environmental encourages our clients and colleagues to read and understand the facts sheet but also stresses there is a need to carefully consider the approach to re-use of materials to minimise any potential liabilities arising from re-use or recycling of fill materials and manage project risk.

For further information on this issue, refer to previous Linked-In posts and articles authored by Noel Davies (Landfill Levy a Tax on Development?; 5 Actions to Improve the way the Landfill levy Works In WA; Comment on Changes to Regulations and Landfill Guidelines).

For further insights or advice on this issue please don’t hesitate to contact Pamela or Brad at Aurora Environmental. Further reference information can be found here Brownfield Redevelopment – Aurora Environmental; Risk assessment and remediation on contaminated sites)..