The WA State government passed legislation on 28 April 2018 that permits clean fill (and other fill material meeting certain thresholds) to be used on development and construction sites without payment of levy under the Waste Avoidance and Resource Recovery Levy Regulations 2008 (WA) (Levy Regulations). These changes will help resolve the legal uncertainty for developers and the soil recycling industry that was created by the Eclipse decision.
Meaning of ‘clean fill premises’
The landfill levy is imposed under the Levy Regulations and applies to licensed landfill sites (being category 63, 64 and 65 prescribed premises under schedule 1 to the Environmental Protection Regulations 1987 (WA) (EP Regulations)). As a result of recent changes to the EP Regulations, a ‘clean fill premises’ is excluded from each category of landfill site. This means that no licence is required for ‘clean fill premises’ under Part V of the Environmental Protection Act 1986 (WA) and no levy is payable under the Levy Regulations.
‘Clean fill premises’ is defined as a premises on which all of the waste that is, or has ever been, accepted for burial is ‘clean fill’ or ‘uncontaminated fill’. The basis on which fill is categorised as ‘clean’ or ‘uncontaminated’ is determined by reference to the Department of Water and Environmental Regulations (DWER) Landfill Waste Classification and Waste Definitions 1996 (as amended 2018) (Waste Definitions).
‘Clean fill’ is defined in the Waste Definitions to mean raw and excavated natural material such as clay, gravel, sand, soil or rock files that:
- has been excavated or removed from the earth in areas that have not been subject to potentially contaminating land uses including industrial, commercial, mining or agricultural activities; and
- has not been processed except for the purposes of achieving desired particle size distribution; and/or removing naturally occurring organic materials such as roots; and
- does not contain any acid sulphate soil; and
- does not contain any other type of waste.
Inert waste type 11 (excluding asphalt and biosolids) may also be used as fill without the need for a licence or payment of levy if it meets specified environmental and health thresholds for ‘uncontaminated fill’ after testing. The thresholds are contained in Table 62 of the Waste Definitions as determined by relevant sampling and testing carried out in accordance with the requirement set out in Table 73.
Acid sulphate soils
The definition of ‘uncontaminated fill’ extends to neutralised acid sulphate soils that meet the requirements for relevant metals, metalloids and sulphates (set out in Table 6) and as determined by relevant sampling and testing carried out in accordance with the requirements of Table 7. This is an important inclusion in the definition of ‘uncontaminated fill’ in light of the fact that most soils in the Perth metropolitan area have the potential to become acid sulphate soils unless groundwater is maintained at a suitable level.
It will be necessary to retain the laboratory results that support the characterisation of soils as uncontaminated fill, including neutralised acid sulphate soils, in the event that DWER conducts an audit of the sampling and testing process. Records about the site’s historic activities should also be retained.
Clean fill or uncontaminated fill that is disposed of to a landfill site (such as a category 63 class 1 inert, category 64 class II or III putrescible or category 65 class IV secure) will require a licence and be subject to levy.
The Eclipse decision
Eclipse Resources Pty Ltd (Eclipse) conducted resource recovery operations at three sites in the Perth metropolitan area which involved the use of waste-derived materials to backfill quarry voids. The sites were licensed under schedule 1 to the EP Regulations as category 63 class I inert landfill sites because they each received more than the regulatory threshold of 500 tonnes of material annually.
Eclipse did not pay the landfill levy, ultimately arguing before the WA Supreme Court that the materials were being recycled and were not ‘waste’ or ‘accepted for burial’ for the purposes of the Levy Regulations. Eclipse also argued that the levy was an unconstitutional State-imposed excise contrary to section 90 of the Commonwealth Constitution.
On 9 March 2016, Justice Beech of the WA Supreme Court found Eclipse liable to pay 21.5M in overdue levies on its operations dating back to 2008, in addition to significant penalties.4 On 12 May 2017, his Honour’s decision was upheld by the WA Court of Appeal.5 The Court of Appeal held that ‘waste’ takes its ordinary meaning, being material that is ‘unwanted by or excess to the needs of’ the person who is the source of the material. The Court also found that the levy does not have the characteristics of an excise duty. The High Court refused Eclipse’s application for special leave to appeal on 14 September 2017.
The Eclipse decision had unintended consequences in relation to the use of clean fill on development sites because the acceptance of 500 tonnes or more per year could trigger the requirement to pay levy.
DWER consultation process
Following the outcome of the Eclipse decision in March 2016, DWER put on hold the planned review of its material guidelines for clean fill and construction products to consider the implications of the decision. It then released a consultation paper on 10 November 2017 to address the unintended consequences of the Eclipse decision. The consultation process closed on 2 February 2018.
Following the receipt of 32 submissions, DWER published a consultation summary report (DWER report) on 27 April 2018 which is available here, and enacted changes to the EP Regulations and Waste Definitions.
As a result of the legislative changes, clean fill may be used at development sites without risk that it could attract the landfill levy. Also, waste-derived material may be used as fill (without being subject to levy) if it meets the thresholds for ‘uncontaminated fill’ in the Waste Definitions after testing. However, there is currently no legislative mechanism to encourage the use of waste-derived materials that do not satisfy these thresholds but may be suitable for fill depending on the nature of the receiving environment. In light of the current policy void, DWER guidance on the use of waste-derived materials is necessary. The DWER report foreshadows that broader waste reforms relating to the application of the levy are being progressed.
This article was written by Charmian Barton, Partner.
1 The Waste Definitions define ‘inert waste type 1’ as ‘non-hazardous, non-biodegradable (half-life greater than two years) wastes containing contaminant concentrations less than Class 1 landfill acceptance criteria, but excluding paper and cardboard and materials that require treatment to render them inert (eg peat, acid sulphate soils)’.
2 Table 6 lists the maximum concentrations (thresholds) of relevant chemical substances for uncontaminated fill, including for acid sulphate soils, and the Australian Standard Leaching Protocol (ASLP) limits.
3 Sampling of stockpiles, for the purposes of Table 7, must be consistent with the methodology described in the Guideline on Site Characterisation of the National Environment Protection (Assessment of Site Contamination) Measure (ASC NEMP). Laboratories must hold National Association of Testing Authorities (NATA) accreditation for the testing undertaken.
4 Eclipse Resources Pty Ltd v State of Western Australia [No 4] (2016) FLR 221; [2016] WASC 62.
5 Eclipse Resources Pty Ltd v Minister for Environment (No 2) [2017] WASC 90.
Charmian Barton
P: +61 8 9420 1573
E: cvbarton@hwle.com.au