Proposed legislative amendments to provide for use of clean fill and uncontaminated fill – Discussion paper released

The Western Australian Department of Water and Environmental Regulation (DWER) has released a discussion paper proposing amendments to the Environmental Protection Regulations 1987 to provide for use of clean fill and uncontaminated fill.

The amendments are proposed following the Supreme Court decision in Eclipse Resources Pty Ltd v The State of Western Australia [No 4] (2016) WASC 62, handed down on 9 March 2016.

The proposed amendments are to the: 

  • the description of category 63, 64, 65 and 66, and 89 of Schedule 1 of the Environmental Protection Regulations 1987 (EP Regulations), and
  • the Landfill Waste Classification and Waste Definitions 1996 (as amended December 2009)1 (Waste Definitions).

The Supreme Court decision clarified the application of the waste levy in Western Australia. However, DWER has stated that it also had unintended consequences in relation to the use of clean fill for development in certain circumstances, and liability for the waste levy under the Waste Avoidance and Resource Recovery Levy Act 2007 (WARR Levy Act) and licensing requirements under the Environmental Protection Act 1986 (the EP Act). Therefore, DWER has reviewed Schedule 1 of the EP Regulations to ensure that the use of clean fill for development can continue without the requirement for a licence or liability for the waste levy. In addition, amendments are proposed to allow for the use of uncontaminated fill that meets environmental and health standards after testing without the need for a licence or payment of the waste levy.

Amendments are proposed to the description of category 63, 64, 65 and 66 prescribed premises in the EP Regulations regarding the definition of ‘waste’ that is ‘accepted for burial’ by a third party. Amendments to category 89 putrescible landfill premises under the EP Regulations are also proposed to be amended for consistency.

The proposed amendments provide that premises that have only ever accepted ‘uncontaminated fill’ or ‘clean fill’ (as defined in the Waste Definitions) for burial are not category 63 to 66 prescribed premises, and as a result are not subject to the licensing regime under the EP Act or liable to pay the waste levy (for categories 63 to 65) under the WARR Levy Act and Waste Avoidance and Resource Recovery Levy Regulations 2008.

Amendments are also proposed to the Waste Definitions to include a definition for ‘uncontaminated fill’ and a revised definition for ‘clean fill’. ‘Uncontaminated fill’ will include inert type 1 waste (excluding asphalt and biosolids) meeting specified thresholds for chemical substances and relevant physical attributes, as determined by sampling and testing requirements. The revised definition of ‘clean fill’ is proposed to be limited to raw excavated natural material that meets specified requirements.

The definition of ‘clean fill’ will be consistent with the Supreme Court determination in the Eclipse case that ‘clean fill’ excludes material containing building rubble such as broken concrete or bricks.

The Department is seeking feedback on these proposed amendments. Consultation is open until 2 February 2017 and should be emailed to

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