When is a Soil Stockpile ‘Waste’, and Can a Hotspot of Asbestos or ACM in a Stockpile be Removed and the Soil be reclassified?

Generally as consultants we have had a slight confusion on the strict regulation and guidelines information, and information received by NSW EPA in seminars, advice etc, on when contaminated soil becomes waste.

Why is that important?

Simply put, there are two pieces of legislation, and two branches of NSW EPA that regulate under each piece of legislation with different, and in some areas overlapping regulation. The Contaminated Land Management Act 1997, and the Protection of the Environment Operations Act 1997 under which the Protection of the Environment Operations (Waste) Regulation 2014 sits.

The question has been, when does a stockpile become waste?

Compliantly (and sustainability) dealing with asbestos impacted soil for instance, can be a large headache for large construction and development projects. Asbestos impacted soil for instance cannot have asbestos hotspots separated from a stockpile, or be stabalised for reuse under the waste regulations.  It can be buried in a containment cell or capped with a long term environmental management plan onsite (which will likely lower the property value) under the contaminated land regulation, but active remediation treatment options have not been available. 

In the United States there is a destruction method that appears to be approved. The ABCOV® Method destroys asbestos with a non-thermal, United States Federal Environmental Protection Agency approved, chemical-physical process. The company has also launched in Australia, however we do not know if any projects have been approved by Australian regulators as yet. https://abcov.com/method/

In New South Wales, the answer to stockpile separation and when an item becomes waste was answered in a legal proceeding.

In 2019 a NSW Criminal Court of Appeal (CCA) decision has significantly changed the interpretation and application of waste classifications and offences under the Protection of the Environment Operations Act 1997 (POEO Act). It also helped to clarify when a stockpile is waste, and if asbestos hotspots can be removed from stockpiles.

The decision in Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie [2019] NSWCCA 174 set legal precedent that:

• broadened the definition of 'waste' to include materials temporarily stored on a site;
• determined that any portion of asbestos within a stockpile of waste is enough to classify the entire stockpile as 'asbestos waste';
• determined that temporarily stockpiling material on land triggers the scheduled activity of 'waste storage' under clause 42 of Schedule 1 of the POEO Act; and
• made it clear that the burden of proof falls on defendants who assert that a resource recovery exemption applies in relation to obtaining lawful authority to operate a waste facility, and that strict compliance with the requirements of that exemption must be shown.

Source: https://corrs.com.au/insights/environmental-offences-nsw-criminal-court-of-appeal-decision-broadens-the-definition-of-wast

Recent advice from NSW EPA iEnvi received, included an exception to the above: 

The EPA does however allow a stockpile which may have 1 or 2 pieces of asbestos to be re-classified, however a very specific approach must be followed. This includes:

• Segregating the stockpile into multiple smaller volumes, preferably by material type;

• Spreading the material thinly over an area so as all parts of the soil can be visually inspected and sampled at a suitable, high density;

• Re-classification of the segregated section if appropriate;

• Repeat for all portions of the stockpile, not just the area where asbestos was originally found.

• The alternative to the above where a hotspot is considered allowable is in the case of large stockpiles where there is considerable evidence that 1 piece is an outlier. For this to be allowable there must be a significant sample density, of which only one had asbestos. i.e. Only  1 sampled confirmed to contain asbestos in 1000 samples;

• The proponent should then contact the NSW EPA in writing through their mailbox and seek approval for hotspotting this area out. This is mainly only for large construction stockpiles in the 1000's of cubic metre realm.

Disclaimer: The  rules for managing asbestos in stockpiles should be verified for your own project with NSW EPA, and the information above should not be relied upon.