Contaminated fill – don’t risk a fine!
Through our interactions with out clients, we’ve learned that a lot of people remain unaware of the new legislation covering the use of landfill in NSW. Because breaching this legislation can result in fines of up to $1 million, and we don’t want to see any of our clients do the wrong thing, we’ve put together this article to outline the basics of compliance with the law.
Amended legislation
The Protection of the Environment Operations Act 1997 and the Protection of the Environment Operations (Waste) Regulation 2005 were amended in 2008 to “simplify waste facility licensing, simplify waste classification, set clearer requirements for managing clinical and asbestos waste, and introduce a framework to support genuine recovery of waste material for land application or [for use] as fuel.”
Some of the changes apply to the use of fill.
Why it’s regulated
The use of fill is now highly regulated for good reasons:
- Because much fill that has been offered as “clean” has turned out to be contaminated with poisonous chemicals.
- To prevent the contamination of home sites, parkland, bushland, groundwater and waterways with poisons leached out of contaminated fill.
- To crack down on shonky dealers looking for a quick buck at the expense of the unwary.
“Clean fill” no longer
The term “clean fill” has no legal standing. Fill cannot be offered as “clean”. It can, however, be offered as “virgin excavated natural material” (VENM), if that description is correct. VENM applies strictly to “natural material ... that has been excavated or quarried from areas that are not contaminated with manufactured chemicals or process residues ..., and that does not contain any sulfidic ores or soils or any other waste.”
A chemical analysis of the material is necessary where it is not certain that the material is not contaminated. So material from a new building subdivision is probably OK; material from an old cattle dip is probably not OK. When in doubt, check.
Is approval required?
Check with either the local council or the Department of Environment, Climate Change and Water (02 9995 5000) to find out whether approval is required to place fill at a particular site. Restrictions apply to filling near watercourses or native vegetation and wildlife.
Before you accept VENM fill
If you accept fill that later turns out to be contaminated, you can be prosecuted. So always ask for details:
- the name, address and ABN or ACN of the supplier
- the name and driver’s licence number of the driver
- the truck’s registration number
- delivery dockets
- the address where the material originated
- the original laboratory analysis results (not a copy) if applicable (if in doubt, send off samples yourself for analysis).
This information can reduce your chances of prosecution if the supplier turns out to have supplied contaminated fill and then did a midnight flit.
Always check the material when it arrives to satisfy yourself that it is VENM and is not building rubble, for example, or does not have a funny smell or colour.
You must have the documents, you know
Always keep all documentation you receive. You might have to prove later that you acted in good faith.
When in doubt, test!
If you’re at all in doubt, get the material tested.
Better still, engage the services of a suitably qualified environmental consultant, who can advise you on all aspects of sourcing and using fill. SESL is always ready to help, or you can choose someone from the Yellow Pages.
Further information
Department of Environment, Climate Change and Water. Waste legislation.
Department of Environment, Climate Change and Water. The waste management and resource recovery framework.
Department of Environment, Climate Change and Water. Virgin excavated natural material. Fact sheet.
SESL. Make sure your fill is legal.
SESL. Waste regulation in NSW.