Based on existing European Court caselaw, there is absolutely no reason why uncontaminated soils excavated from one site cannot be reused on a different site – so long as you use only so much as you need, and the soils are suitable (and certain to be used) for the proposed end use. In those circumstances the soils cannot be regarded as having been discarded, and therefore cannot be waste.
Existing EA guidance suggests that only on-site reuse is permissible, but this does not (and, to be fair, is not intended to) represent an accurate statement of the legal position. The existing guidance is there simply to discourage off-site reuse, but without actually saying it is illegal (which it isn’t).
The WFD will, at the very least, provide that uncontaminated soils which are certain to be reused on the source site are not waste (thus superseding the existing guidance document). But if the European Parliament (intent on slashing needless red tape) gets its way, the above will apply both to the source site AND any other site.
Itâ€™s important to note, however, that even if the above Environmental Permit exclusion doesn’t get expanded to include other sites, the legal position (based on existing caselaw) will remain unaltered, meaning that off-site reuse (where the requirements of suitability and certainty are met) remains perfectly legal, notwithstanding the Agency’s reluctance to advertise that fact.